Developed by the Harris Corporation of Florida, Stingray is a portable device that duplicates or imitates cell phone towers. Mentioned in a recent article on the Pulitzer Prize-winning website, "The Guardian," the “secret” device has the capability of tracking cell phones. As a result of its use by law enforcement and intelligence agencies, it captures and transmits personal identifying information and location. Additionally, it pulls phone content, text messages, and data transmission.
According to official records obtained by the American Civil Liberties Union (ACLU) through a Freedom of Information Act (FOIA) request, at least 50 law enforcement agencies in 21 states have the extremely intrusive technology that violates our constitutional rights. This includes California.
According to a non-disclosure agreement (NDA) signed with the Harris Corporation, participating law enforcement agencies are barred from divulging any information about Stingray technology. This incorporates search warrants, pre-trial hearings, testimony, grand jury proceedings, court appeals and in the all-important mandatory pre-trial evidentiary Brady disclosure or discovery stage of a legal proceeding.
According to the NDA, police are only allowed to provide “evidentiary results” – merely revealing to the court the information obtained but not the all-important “how” it was obtained – a material fact in any legal proceeding. More importantly, whether it was obtained lawfully or unlawfully, the agreement also requires the law enforcement agency to contact the FBI so they can intervene and run interference with our constitutional right to due process, while preventing it from being revealed before a judge in a court of law.
This deliberate and constitutionally questionable action raises a number of serious legal problems that clearly affect the fundamental right to a fair trial. These also include the form and manner in which lawyers plan and prepare their client’s defense. Without all the material evidence made available, the effectiveness of counsel is fatally compromised, as is the principle of a fair trial. This is especially important in the pleading or defending stage – where defenses and remedies are formulated and accusers are subpoenaed for cross-examination. The conduct, strategy and potential outcome of the trial itself is predetermined and prejudiced by the withholding of this material evidence.
By violating due process, the denial of material evidence goes directly to the issue of guilt or to punishment itself (Brady v. Maryland 1963). In the discovery stage – if all the relevant evidence obtained by law enforcement is not truthfully disclosed, the deposition of applicable legal issues, the proper and appropriate legal motions cannot be fully appreciated and acted on.
For these reasons, FBI stingray spying technology and, in particular, the NDA contractual provision – not to disclose – fundamentally and detrimentally affect a key element of our legal system – the right to a fair trial!
I hope that lawyers and judges go beyond the mere acceptance of state prosecutors and law enforcement “evidentiary results” declarations. They must insist on all the material evidence, including Stingray technology and how that evidence was obtained.
More importantly, the courts must rule on the legitimacy of NDA provision in these agreements, and its profound effect on our fundamental of rights, and trust in law enforcement more.