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COMMENTARY: Is law enforcement employing “Stingray” technology and keeping it from defense attorneys and judges?

Police use of technology intercepts private cellphone communications while hiding it from attorneys and the courts

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.

 

About:
Luis Burguillo (An Engaged and ...)

As a student of the media and journalism, I am interested in utilizing the medium in order to assure that the residents of the City of Hollister and San Benito County are alerted, informed and educated on the official actions of their elected officials who are sworn to preserve, protect and defend the US constitution and Bill of Rights. More importantly, their engagement in the political process will hold the leaders accountable for their actions/decisions and lead to an improved governance.

Comments

IMHO, there is an expectation of privacy when you use personal communications.  In that regard there is no real difference between an old fashioned wired telephone and a smartphone.  Your conversations, location and other data should not be intercepted without a warrant showing probable cause and the required oath. It's fundamental constitutional law: 

"Amendment IV Search and Seizure

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I am less sure that the technology  details have to be revealed past the point of being able to PROVE beyond a reasonable doubt that it is reliable - but that last part is very important even if a warrant is available.

Marty Richman

Submitted by Mary Nydegger (Mary) on

No Way!

I don't believe it.

I called the police when I was the victim of computer crime and they do not have a tech department. They don't even take a report unless you know a suspect.

Given my personal experience, there is no way they are using this technology on us while refusing to address technology assisted crime.

That would be a lawsuit waiting to happen!

Our HPD is better than that!

 

 

 

Submitted by (Levi hancock) on

Well I don't think it's right that anyone. Can just call up our. Law enforcement and accuse someone of something and then a warrant is issued. There is something wrong with that. And it needs to be addressed. Because around our court house if you can not afford to make bail. You sit in the jail going through the motions meanwhile. Your job your home and your family loose it all just because someone called and said you committed a crime? Isn't that guilty until proven innocent? How would you feel if it happend to you or anyone just trying to get by.

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