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Cops Say NDA Kept Them from Notifying Courts About Cell Phone Tracking Gadget 235

Posted by samzenpus
from the I-can't-say dept.
schwit1 writes "Police in Florida have offered a startling excuse for having used a controversial 'stingray' cell phone tracking gadget 200 times without ever telling a judge: the device's manufacturer made them sign a non-disclosure agreement that they say prevented them from telling the courts. The shocking revelation, uncovered by the American Civil Liberties Union, came during an appeal over a 2008 sexual battery case in Tallahassee in which the suspect also stole the victim's cell phone. Using the stingray — which simulates a cell phone tower in order to trick nearby mobile devices into connecting to it and revealing their location — police were able to track him to an apartment."
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Cops Say NDA Kept Them from Notifying Courts About Cell Phone Tracking Gadget

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  • WTF???? (Score:5, Interesting)

    by gstoddart (321705) on Monday March 03, 2014 @03:04PM (#46389155) Homepage

    Police in Florida have offered a startling excuse for having used a controversial 'stingray' cell phone tracking gadget 200 times without ever telling a judge: the device's manufacturer made them sign a non-disclosure agreement that they say prevented them from telling the courts

    I'm sorry, but what?

    You broke the law because if you'd told the courts you'd be breaking an NDA with the company?

    How the hell can a police force enter into a contract which expressly requires them to break the law?? What genius lawyer signed off on that one?

    Oh, sorry your honor, we couldn't tell you we were violating the law because we signed a contract?

    That's ridiculous.

  • Surprisingly lazy (Score:5, Interesting)

    by schneidafunk (795759) on Monday March 03, 2014 @03:04PM (#46389157)

    This is exactly a case where I am OK with tracking down the criminal through the cell phone. The warrant would absolutely have been granted if they bothered to ask for it.

    FTA:
    According to the appellate court judges, after a young woman reported on September 13, 2008 that she had been raped and that her purse, containing a cell phone, had been stolen, police tracked the location of her phone about 24 hours later to the apartment of Thomas’ girlfriend.

    “The investigators settled on a specific apartment ‘shortly after midnight’ or ‘approximately 1:00 to 2:00 a.m.’ on September 14, 2008,” the court wrote. “For the next few hours, six or seven police officers milled around outside the apartment, but made no effort to obtain a search warrant.”

  • Well... (Score:2, Interesting)

    by Anonymous Coward on Monday March 03, 2014 @03:06PM (#46389175)

    Assuming the NDA can be held to apply in this case (which in fact it would not) -

    Not being able to tell the court obviously precludes being able to ask them for authorization to use the device. This does NOT mean they can use it without authorization from a court, but in fact the exact opposite: the NDA would make it completely unusable, as they can't get that required authorization.

    Just wow.

  • Re:Surprisingly lazy (Score:5, Interesting)

    by gstoddart (321705) on Monday March 03, 2014 @03:15PM (#46389273) Homepage

    This is exactly a case where I am OK with tracking down the criminal through the cell phone. The warrant would absolutely have been granted if they bothered to ask for it.

    Except that they didn't get a warrant, subsequently used the device in a bunch of other cases (again, without warrants) is mind boggling.

    An NDA with a vendor is not a free pass to violate the law, and if the police are stupid enough to believe they can do anything they want because they signed an NDA, they're horribly mistaken.

    A vendor of such things cannot compel you to violate the law. And they should have known this -- surely somewhere they have legal counsel who can say "well, that doesn't mean you can do this any time you like".

    This is either stupidity and incompetence, or deciding you now have a loophole to do an end run around the law whenever you choose.

    That's like telling your mom that when you bought your brother's bicycle for $0.10 her right to punish you was covered by an NDA. It simply doesn't work that way. She will still punish you, and the courts need to really do the same here.

  • by Immerman (2627577) on Monday March 03, 2014 @03:21PM (#46389331)

    Indeed. If a contract requires you break the law, you are legally obligated to refuse to sign. Signing with the intent to obey the law would be fraud, and signing with the intent to break the law would be conspiracy to commit a crime.

  • by msauve (701917) on Monday March 03, 2014 @03:39PM (#46389467)
    Additionally, using one of those boxes would require court approval. Perhaps not for a traditional search warrant, but certainly to allow the police, who are not licensees of the radio frequencies involved, to operate these intentional transmitters. And that probably means federal court approval.
  • by Aighearach (97333) on Monday March 03, 2014 @03:42PM (#46389497) Homepage

    False. Illegal portions of the contract are not enforceable, and you simply are NOT required to do those parts. And if you knew they were not enforceable, then there is no conspiracy. This happens frequently.

    To have a conspiracy you have to have some action taken in furtherance of the crime. Signing the contract and then also taking a step to further the illegal actions, then the contract proves intent. But only once they already have you in those other details.

  • by Jane Q. Public (1010737) on Monday March 03, 2014 @03:53PM (#46389615)

    "And if you knew they were not enforceable, then there is no conspiracy. This happens frequently.

    But the police department is claiming they are enforceable. So by this logic, there is conspiracy, since they reasonably must have known it was not so. Not conspiracy with the other party, to be sure, but conspiracy to break the law.

    To have a conspiracy you have to have some action taken in furtherance of the crime."

    You mean like illegally tapping telephones then giving obviously bogus justifications to the court?

  • by Obfuscant (592200) on Monday March 03, 2014 @05:01PM (#46390265)

    Additionally, using one of those boxes would require court approval. Perhaps not for a traditional search warrant, but certainly to allow the police, who are not licensees of the radio frequencies involved, to operate these intentional transmitters. And that probably means federal court approval.

    No. Federal courts do not issue FCC licenses for radio use, the FCC does. Licensing the radios would not be subject to a warrant request. Courts, federal or local, don't have the technical expertise to issue radio licenses, nor do they have statutory authority.

    It appears that running a microcell is no longer a huge issue with respect to licenses. This company [rangenetworks.com] will sell you a complete cell system in a box, needing only an IP connection. How they deal with licensing is not apparent from their website.

    On the issue of using the "controversial device" to track the criminal in this case, I'm not so ready to jump on the "police broke the law" bandwagon. If someone steals my LoJack equipped car (or OnStar) the police do not need a warrant to get location information from either source. The criminal has no reasonable expectation of privacy related to the location of MY CAR after he's stolen it. Why would a criminal who steals a cell phone, which by it's very nature is inherently trackable, have such an expectation for a phone he's stolen? This is not a case of "locate Frank Smith so we can track his whereabouts whenever we want to", it's a case of "find the location of stolen property so we can recover it for the rightful owner." If they happen to find that stolen property in the possession of a criminal and can arrest him at the same time, that's a plus.

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