Ride the Lightning

Stingrays are one of a class of surveillance devices known as “cell-site simulators,” which pretend to be cellphone towers in order to extract metadata, location information, and in some cases content from phones that connect to it. Prosecutors are required to reveal the evidence against defendants in the “discovery” phase of a criminal trial.

An investigation by The Guardian revealed a non-disclosure agreement that local police and prosecutors were forced to sign with the FBI before using the Stingray devices, which mandated them to withdraw or even drop cases rather than risk revealing Stingray use.

“It shocks the conscience that a police commissioner and an elected State’s Attorney would conspire to commit obstruction of justice unless the FBI told them they could disclose,” Insley told the Guardian.

The motion cites an agreement between then-states’ attorney Gregg Bernstein and then-police commissioner Frederick Bealefeld which stated that their offices “shall not, in any civil or criminal proceeding, use or provide any information concerning the Harris corporation wireless collection equipment/technology” without permission from the FBI. The motion also stated that in the original trial in November 2014, attorneys for the state told defense counsel that “the device” was not used in the investigation. In fact, it was.

“This was clearly a deliberate and willful misrepresentation to the court to conceal the use of extrajudicial clandestine surveillance by the Baltimore City police department,” the motion stated, adding later that the State’s Attorney had demonstrated “an intentional wanton disregard of the Rules of Evidence.” The Baltimore public defender’s office has also begun re-examining more than 2,000 cases in which police secretly used Stingrays.

In more welcome news, there was a change in federal policy on Thursday in which the U.S. department of justice said that federal entities would have to obtain a specific warrant to use Stingrays. But this change in policy does not affect local police forces or state-level agencies, where the use of cell-site simulators and other devices is still cloaked in secrecy, and requires only a low-level court order called a PEN register, or “trap-and-trace” order, to grant police permission for its use.

Time for legislative action on the state front, methinks.

Thanks Chris and Dave Ries!

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