Privacy SOS

FBI would rather shield its surveillance powers from judicial review than prosecute criminals

A non-disclosure agreement signed by the Erie County Sheriff's Office shows that the FBI would rather protect its power to use stingrays from public scrutiny and constitutional challenge than prosecute criminals.

Writing to order the release of documents sought by the NYCLU in a public records lawsuit against the Sheriff's Office, Judge Patrick NeMoyer describes the content of a non-disclosure agreement pertaining to cell site simulator technology.

[T]he Sheriff’s Office is instructed, upon the request of the FBI, to seek dismissal of a criminal prosecution…in lieu of making any possibly compromising public or even case-related revelations of any information concerning the cell site simulator or its use.

In February, The Washington Post published a story about a person who personally benefited from the government's refusal to openly discuss its use of stingrays. In a Florida armed robbery case, prosecutors offered a defendant "the deal of the century" instead of submitting evidence about its use of a stingray in court. Facing years in prison, the man accepted a plea of six months probation after his lawyer demanded that prosecutors present evidence about police use of the stingray.

In light of the New York judge's description of the non-disclosure agreement signed by Eerie County's Sheriff, it seems highly likely the Florida robbery suspect benefited from a well established, federal policy—not a one off decision based on local prosecutorial discretion.

The FBI's interest in shielding stingray surveillance from public scrutiny and judicial review hasn't prevented a relatively open conversation in media and privacy circles about the widespread law enforcement use of these powerful tools. It has, on the other hand, prevented courts from ruling on the constitutionality of stingray spying. Just last week, Virginia became the first state to pass a law explicitly requiring a warrant for stingray surveillance.

The Eerie County judge who ruled in favor of the NYCLU in the state records lawsuit revealed a lot of information about stingrays in his decision, made public today. Among other things, Judge NeMoyer writes that documents submitted by the Sheriff's office for his review show that the police used their stingray equipment 47 times between May 1, 2010 and October 3, 2014. According to the judge's description of documents describing these searches, the Eerie County Sheriff's Office and local law enforcement who used their stingray only obtained a court order to do so once, in the October 2014 case.

Stay tuned for more information about the Eerie County Sheriff's deployment of stingrays, as the documents described by the judge become available for public review. And congratulations to the New York Civil Liberties Union on their victory. Happy Sunshine Week!

© 2021 ACLU of Massachusetts.