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Cops hid use of phone tracking tech in court documents at feds’ request (arstechnica.com)
185 points by Atlas on June 20, 2014 | hide | past | web | favorite | 53 comments

Cops are basically saying that they can do illegal things, and then actively conceal them during the discovery process so that defendants cannot challenge the illegal conduct in court. This kind of thing isn't going to stop. Everyone should assume that any unencrypted cell phone calls and texts can and will be examined by law enforcement. Act accordingly.

That said, defense attorneys really need to be on the lookout for cases like this, where only vague references to confidential sources of information are disclosed. If they know the tell-tale signs, they can ask the judge to issue orders during discovery that will put the prosecutor in the position of either being held in contempt of court or disclosing to the defense the specific illegal tactics the police used.

> Everyone should assume that any unencrypted cell phone calls and texts can and will be examined by law enforcement. Act accordingly.

Duh. It is a good thing that law enforcement can examine texts and phone calls, unencrypted and encrypted. However, it is unacceptable that doing so is hidden to the courts.

Actually, no, not without probable cause. It appears that in some of these cases that the probable cause was "because we bugged his phone".

It appears that there's more going on beneath the surface than we knew about. First, police departments sign NDAs so threatening that they don't want to reveal the use of stringrays. Next, US Marshalls seize Florida records of the use of stingrays. What does this pervasive concealment of the use of IMSI catchers/stingrays mean? I can think of two things:

1. IMSI catchers are used constantly, without warrant and maybe even without any administrative oversight. The discloseed use is the tip of some giant iceberg of surveillance. Revealing the use of IMSI catchers would imply the giant iceberg, even if we don't know where it is.

2. There's some kind of Freudian shame/concealment issue at the DoJ. They know it's un-American (and it is!) but they can't stop doing it for some reason. So, they hide its use.

3. This is a valuable tool for police, and the police worry about criminal countermeasures once it becomes public.

My money is on a combination of 2 & 3.

A tool so valuable that both local police, plus the Federal government, will break numerous laws and trample on the rights of citizens to protect the secret of its existence. An existence so secret that the only people to understand the possibility of its existence is anyone who's been paying attention the last decade. So secret in fact, that the Wikipedia page is only about three years old.

I don't care how valuable it is. If it is used by government agencies in a manner that breaks the law, wait, numerous laws and rights, then that implies those agencies feel they are above the law. Once such agencies that enforce the law are no longer beholden to it, things tend to fall apart.

First, I agree with everything you said whole-heartedly.

I don't believe that most cops out there actually have an intent to do evil, or to trample your rights though. They deal with criminal after criminal after criminal, I think their perspective is more likely that these tools and methods help solve cases quicker and there-for save taxpayer money and that us civilians aren't able to see that perspective.

I think that they aren't aware of the long term implications of what they're doing and that they should stop, but also that it's important not to think of them as evil if you want to have a dialogue with them about change.

Ignorance of the law (and Constitution, in DoJ and DA's cases) is no excuse. I think you're cutting them undeserved slack. If any company in the USA used the "it saves money!" excuse to do illegal things, we'd show them no mercy.

Evil is a road paved with good intentions, or it goes something like that.

There's no nothing wrong with starting a dialogue with "hey! this thing you are doing is wrong!" and I will continue to do so. I try not to judge too harshly on just that though. I hold back the anger in reserve to see how they react once it starts coming to light. Covering up the existence of potential wrongdoing, keep in mind the courts could likely say the tactic is legal, does not bode well for appearances.

It has no value if they have to ignore the Constitution and creep around like criminals themselves.

Don't be facetious, just because the Constitution says "don't do X" doesn't mean X is worthless.

There is value to freedom of association, but it shouldn't be assumed that it's valuable because the Constitution says so. The same logic can be applied reversely -- there is value to curtailing freedom of association.

"It's only illegal if you get caught" seems to be the mantra of the DoJ in this case -- stonewall and distract rather than address the legality of illegal activities.

This country was founded on open courts and due process, neither of which this "useful tool" falls under. My point is you can't "save the village by destroying it," not that things derive their value from their legal status.

The wonderful thing we mostly have going in the USA is destroyed by these individuals who pretend to be protecting it. The ends do not justify the means.

I'm not at all saying the ends justify the means, just that their argument that these tools are useful is valid, and we will need to help them realize that they are damaging us far more than they are helping us.

So far, nobody has really said what value comes from the (presumably illegal, and hence cover-up required) use of IMSI catchers. We've all speculated ("easier to find criminals!", "cheaper to find criminals!"), but what, exactly, is the value to law enforcement? The citizens of the USA are supposed to decide (through their representatives, of course) about what to do and how to do it. Perhaps the tools aren't useful, perhaps they are. Without some knowledge we don't know. The feds need to open up about IMSI catchers.

I'm not sure what to say. Mostly I'm just frightened for the future. It's very disheartening to watch civil liberties be dismantled so rapidly.

When you combine this with the secret transatlantic talks for the proliferation of extremely large multinational corporations and the rapid militarization of the police, it almost feels as if there might be a coup being slowly but silently executed right under our noses.

And no one cares. I did my first stand up set and had a joke about going to an ACLU meeting, and no one even knows what the ACLU is.

As scary as it, I certainly understand, that it is not as bad here as many places, but that doesn't mean I can't be concerned with the recent developments.

I just hope the American spirit will shine through one day and turn all of this around. The house passing to defund back door NSA research is heartening at least. Lets see what happens in the Senate.

The corporations are not the problem here, it would be much simpler if they were. Elected and appointed government officials seem to have a strong desire to create their vision of a pleasant and orderly society, whatever the costs. These people generally appear to believe that so long as 'enlightened' people (such as themselves) are in charge, nothing bad can result.

I think it's quite interesting that - perhaps to my tinfoil-hat side - we're ending up somewhere between Orwell and Huxley.

- Orwell feared the truth would be actively concealed. Check.

- Huxley feared distractions would be so great that no one (or very few people) would care to seek the truth. Check.

- Orwell feared we would become a captive culture. Check.

- Huxley feared we would become obsessed with consumerism and preoccupied with distraction. Check.

- Orwell assumed we would be controlled by inflicting pain. Check (foreign policy).

- Huxley assumed we would be controlled by inflicting pleasure. Check (domestic news cycle, reality TV, lack of education.)

Both had valid points and we're seeing both approaches being used. So where we end up, I have no idea... where we are isn't great.

Talking points from this great comic strip: "Amusing Ourselves to Death" by Stuart McMillen, from 2009: http://flycl.ps/SXHdFP

Edit: formatting.

this great comic strip

Talking points from this great book: "Amusing Ourselves to Death" by Neil Postman, from 1985: http://en.wikipedia.org/wiki/Amusing_ourselves_to_death

Not to speak of perpetual war... [1984]

And divide and conquer politics [Animal Farm]

I don't think this is really a coup of some kind. It is more a consolidation of power by the oligarchy into a handful of politically powerful, wealthy groups.

I think the reason this is working so well is the marketing.

Almost no one goes out and admits that the domestic usage is partially to catch people violating "social norm" laws [marijuana bad; alcohol good], and keep an eye on things that are highly political [e.g. Occupy Wall Street].

I think the average person assumes "because MURICA" that doesn't happen.

It's almost as if America has become a culture that if something doesn't directly impact the individual they don't care about it, no matter how unjust. We see this with the "well, I have nothing to hide" mentality as well as the "maybe they shouldn't have broken the law in the first place" mentality.

The average American has almost assumed the government to be perfect except for the few parts it dislikes and doesn't want to look more deeply to realize that other people have pointed out just as valid criticisms of other parts of the government.

What we end up with is a majority of people (say 80%) that all dislike a different small part of the government and think the rest of this group is complaining for no reason or should just accept the way things are.

We see this with things like teachers not liking the state-run testing but refusing to acknowledge that the state's interference with drug policies is having an equal if not greater impact.

No one is satisfied but everyone has a different problem.

We've become closed minded in being open minded. Once we decide we're open minded to one thing we feel that's enough and turn a blind eye to the rest.

That doesn't jibe at all with how "average Americans" have been arming themselves with rifles of military utility at historically unprecedented rates (some details on request, drilling down to that level would be a lot of work; it started post-9/11, I believe because the government made it clear we were on our own).

Concealed carry is also very big, although a lot of that seems to be driven by an aging population, plus I think the media's perfervid portrayal of crime while actual rates are going down in most places.

NCIS checks are up over 50% since 2002.


So overall purchases are up.

However, the number of households with guns is down: http://www.nytimes.com/2013/03/10/us/rate-of-gun-ownership-i...

So I think you is mistaken in that gun ownership is increasing as a share of the population in a major way.

Come on; while the NYT is now paywalled for me as of today (I guess I used up my monthly quota), the date of the article shows it's during the Sandy Hook furor, when after a decade's pause the Democrats at the national level returned to gun-grabbing. Self-reported gun ownership to a nosy stranger calling you on the phone has always tracked the political situation.

Doing the math is a lot more productive; I don't know about the above (since I can't read it!), but when I ran the numbers on another gun-grabber claim of the sort at around the same time, it implied we gun owners have now, on average, accumulated gun collections worth more than $100,000. That obviously doesn't pass the smell test, especially N years into the Great Recession.

It was a discussion of the long term trend, not specific to that instance.

So you are saying more people lie about owning a gun to a nosy stranger than they did over the past 40 years?

It also isn't a democrat or republican issue. The growth in gun purchases began in 2002.

Since it won't let me reply yet:

"But by the mid-2000s, the federal government stopped asking the questions, leaving researchers to rely on much smaller surveys, like the General Social Survey, which is conducted by NORC, a research center at the University of Chicago.

Measuring the level of gun ownership can be a vexing problem, with various recent national polls reporting rates between 35 percent and 52 percent. Responses can vary because the survey designs and the wording of questions differ.

But researchers say the survey done by the center at the University of Chicago is crucial because it has consistently tracked gun ownership since 1973, asking if respondents “happen to have in your home (or garage) any guns or revolvers.”

The center’s 2012 survey, conducted mostly in person but also by phone, involved interviews with about 2,000 people from March to September and had a margin of sampling error of plus or minus three percentage points.

Gallup, which asks a similar question but has a different survey design, shows a higher ownership rate and a more moderate decrease. No national survey tracks the number of guns within households."

Key flaw here is the fact it doesn't track nationwide [and there isn't one, even by the NRA and other gun rights groups].

The article itself shows a decline from about 50% to about 30%. I don't think reading the rest would really help you pick apart what I've said.

"It was a discussion of the long term trend, not specific to that instance."

Well, point me at a source I can read, or quote the relevant parts, or email me them (see my profile). Or just tell me which polling outfit did it, e.g. Gallup puts this sort of stuff on-line and without a paywall.

"So you are saying more people lie about owning a gun to a nosy stranger than they did over the past 40 years?"

See above WRT my not being able to know what you're asking, but I wouldn't be at all surprised by such a trend, though I'd really like to look at the endpoints; also note phone surveys have had an increasing problem with just getting people to even answer questions of any sort. The errors in all too many election based surveys ought to give you pause in taking this claim so far.

And, as I said, the math doesn't work. That should be enough to falsify this claim.

"It also isn't a democrat or republican issue. The growth in gun purchases began in 2002."

Which just might be why I said in my original posting above that "it started post-9/11, I believe because the government made it clear we were on our own".

Do you have a source for the increase of "rifles of military utility?"

Either way, it lines up perfectly with what I just said. Those buying these rifles are a vocal minority. Most Americans see them as a problem and want stricter gun laws, or safety switches on guns. They fail to realize that this group's plight parallels with the plights of the groups they do stand behind.

Yeah, data from Pitman-Robertson tax collection on new ones (and ammo as well), and imports of surplus rifles are regulated and reported by the BATF. And the prices of the latter, as each country's stock of "turn of the century battle rifles", that is, bolt action rifles generally designed around 1900, has been exhausted.

Russian Mosin Nagants are the very last set. They're no longer dirt cheap, and looking at gunbroker.com right now, they might be starting to move from the general price of $150. Quality time spent at the website of the National Shooting Sports Foundation (NSSF, they're the true gun industry lobby, http://www.nssf.org/) will get you the details, plus NICS instant background check numbers for purchases of all guns from gun shops, which have been amazing and further reinforce my point (and are a lot simpler, a single monthly figure).

Ammo is also still in iffy supply for rifles and handguns.

Seriously, I've watched this market since the early '70s, and know at least the general history in the 20th Century, and nothing like it has ever happened before.

"Most Americans see them as a problem"

Do you have a reliable source for that? As opposed to generic polls that say "Crime is bad, should there be stricter laws?" when even many gun owners don't know the current purchasing strictures, vs. "This Colorado law will make it illegal for you to leave your guns with a friend before your house is flooded" (the latter is not a hypothetical, BTW, but a recent event), "Do you approve of that?"

What I'm referencing above is very hard info, for new and imported guns with a granularity of 1 (every single one is reported), revealed preferences if you like.

The very self-evident political power of gun owners suggest we're something more than what you associate with the term "vocal minority".

"safety switches on guns"

What do you mean by that? With the exception of some single shot target rifles, and hard trigger pull self-defense oriented double action, or loathsome striker fired handguns like the ubiquitous Glock, which the gun grabbers are not demanding get manual safeties, I'm not aware of any that don't have a safety that prevents firing when the trigger is pulled.

ADDED: In your OP you said "*The average American has almost assumed the government to be perfect except for the few parts it dislikes..." and expounded on that thesis. I think what I'm claiming strongly cuts against that, however that's based on my belief that more than half of the nation's households have guns vs. what I think you're implying, so I think our models of "the average American" are different.

I think thats semantics. What is a coup but a transfer and consolidation of power?

The only difference I can think of is the time span. This seems to be a long haul kind of game as opposed to the traditional military coups of past (and present).

Keyword: transfer

I'm disagreeing about their being a transfer of power at this stage. There is no power transfer.

The basic power blocks already existed in their current form, were the primary source of money for politicians, etc. since the 1980s [at the latest].

Transfer implies they are taking power away from people. They aren't. They are merely utilizing the power they already have to tighten their hold on it to make it harder to transfer power away from them.

I don't think this is even truly a new phenomena. It is just with Globalization, Internet, etc. the power blocks are so large that they span the entire world rather than just a single country.

"The basic power blocks already existed in their current form, were the primary source of money for politicians, etc. since the 1980s [at the latest]."

I didn't notice any changes in this after the post-Watergate "reforms", which happened not long after I became politically aware.

Globalization is ancient in American economic history, was very big in the 19th Century, and e.g. for the world, it didn't return to pre-WWI levels until a frighteningly later time, I can't remember when, but within my lifetime (which I suppose I should point out started when Eisenhower was president (barely)).

And I agree, this is a consolidation period. But I believe it's build on a foundation of sand, e.g. there is not an infinite hunger for US government debt at negative real interest rates, we're just the "least worst" place to put your money for the foreseeable future.

> I didn't notice any changes in this after the post-Watergate "reforms", which happened not long after I became politically aware.

That is why I added the 'at the latest' bit. I didn't want people to get hung up arguing over a date.

> And I agree, this is a consolidation period. But I believe it's build on a foundation of sand, e.g. there is not an infinite hunger for US government debt at negative real interest rates, we're just the "least worst" place to put your money for the foreseeable future.

It is not purely the US government doing consolidating. The trade treaties the US negotiates are really bought and paid for by US multinationals.

China is also consolidating power as it slowly opens itself to the world market and seeks to displace the US's hegemony.

I'm sure you can even argue the EU "One Market" is the same type of political-economic consolidation.

Probably not much will be done by the general public as long as the milk and honey keep flowing.....

This is the real trick for our leaders (or usurpers or whoever they are). Keeping a chicken in every pot and two cars in each garage.

They start failing at this and suddenly the citizenry might miraculously become concerned about "rights" and "liberty". And... I might point out, in spite of NSA, in spite of a possibly doctored political process, in spite of police departments with tanks... an unhappy and hungry citizenry, especially one that can still vote, has never been good for those in charge of society.

I wonder what the current percentage of the electorate who are dissatisfied with their own Congressional representative is? Last I heard, with national dissatisfaction at Congress as a whole about 90%, that number was at its high point ever, about 35%.

It's very easy to join or donate to the ACLU ($35), and it's (marginally) better than the "let's see what happens" attitude most of us have on this matter.


You linked to the Northern California branch. It'd be better to donate to the main entity.


How is this not a form of perjury? How does this not get every defendant a new trial? How many law suits will come of this for violations of people's constitutional rights?

This crap should result in RICO charges and jail time for all parties that knew of this coverup and didn't try to stop it.

In "The Wire", when police used a Stingray (they already called it that in 2002!) without a warrant, they were banished to the attic.

In reality, the federal government comes in and helps them cover up. Real life beats fiction. Even the power-driven characters in that satire knew the limits, and here is the real government one-upping them.

I'm not sure if it would be considered perjury, but I would imagine it easily falls under withholding evidence from the defendant, of which is entitled to such information for their defense.

But I doubt there would be any prosecutions on this because the people to prosecute such things are the the people who benefit from the technology.

It's perjury if the term "confidential source" legally implies it was information conveyed by a human informant instead of gathered by electronic surveillance. The definitions I can find online say that "confidential source" is synonymous with "human informant" and must be a person. While this might be a "legal person" which includes a corporation, it would be a stretch to call a Stringray a person.

In my mind, they are simply lying about an illegal wiretap, and "this has not been challenged" only because the lie was taken as truth. But I'd guess the exact phrase was well-crafted by a lawyer who thought this alternate "plain English" interpretation would work as a defense. I'm doubtful a judge would view this charitably, but as you say, a prosecution where we find this out seems unlikely.

Is it evidence? Sounds like they're using it to locate people who are already wanted by law enforcement, not to gather evidence of a crime. What's the recourse there?

To me, although not a lawyer, doesn't matter. This is just my gut instinct of what is right.

If a person is a defendant then that person has the right to face all the evidence being used against them. If the defendant feels that a certain part of evidence gathering was done illegally then they have the ability to question that gathering in court, of which the court will decide the legality of the gathering method. If the prosecution has the ability to conceal methods of evidence gathering then that means the defendant has no recourse.

If a person is under investigation, the police use a method to locate and/or track the suspect, and that method ultimately leads to an arrest because of where they happen to be while being located and/or tracked then I feel it should be included as evidence.

But I'm not familiar with court cases concerning such technology so it's possible that all this has already been decided and I just haven't heard of it.

Some of you will end up on juries. Just vote to acquit. Obviously you can't vote to acquit when evidence is withheld at trial... how would you know?

So vote to acquit for all crimes. Period. The damage that one or two or even dozens of criminals will cause is much less than that caused by a government that believes itself righteous when it undermines fundamental human liberties.

I was going to argue with you, but then I realized I agreed. It's now impossible to know whether the evidence presented to a jury was legally acquired, creating (in my mind) an automatic reasonable doubt.

I don't think it's quite that bad for a lot of the more serious crimes, specifically the "real" crimes of violence.

Unless it's a homicide, there's likely to be a victim eyewitness. Or surveillance cameras in areas where the accused has no presumption of privacy. There's also forensic evidence, which in the case of DNA is sufficiently strong in my judgement.

Unless you're inclined to dismiss the latter because you've decided the system is so corrupt even that is in doubt. But I'd hope "enough" crimes of violence can be judged safely that the deterrent effect of convictions and punishment remains.

This isn't just about convicting the guilty. If only it were, we'd have the police tossing homes like jail cells once a week, trying to ferret out the criminals.

Even criminals have rights, and they have the right to hear all evidence against them. Only then can they possibly dispute it.

Jurors who rightly believe that not all evidence was presented or at least scrutinized by the defense have a moral obligation to acquit. If this happened enough, our government would soon be forced to act more responsibly.

Be careful to not commit perjury during jury selection. They will almost certainly ask you if you have any beliefs that would prevent you from ruling based solely on the law; they want to know if you know that you are allowed to rule however you wish, regardless of what the law states, and are willing to do so.

So either lie, but know that you are lying and accept the risk, or tell them "yes" when they ask you that.

I define "belief" quite a bit differently than they do, but I'm also ignorant of the fact that we don't mean the same thing for that word. Therefor, I wouldn't be lying if I said "no".

Sounds good to me. Personally, I'd risk it as well, since negative outcomes for me are unlikely.

The way stingray works is reportedly by pretending to be a cell phone tower. It seems to me this can be used by a smartphone app to monitor for stingray usage.

If the phone knows that it's not moving very fast (Androids certainly know this, I'm sure iPhones can as well), and a new cell phone tower appears suddenly, it seems to me that would be a good indicator somebody is stingraying nearby. (this isn't bulletproof, but would be a good starting point for further data analysis)

An app like this could record and report such incidents, so that we could form a larger picture of how often and how widely it's used.

There are already mobile cell towers in use by AT&T et al, they're used for large events (eg: sporting events).


Differentiating between them and stingrays would be difficult, especially since the baseband chips in your phone are proprietary technology that can lie to the host OS (iOS, Android, etc).

However there are already projects for real-time mapping of cell towers on a national basis, which is a good start, but they will always be a step behind the US Government (for example).

Additional reading:


WiGLE.net has been collecting cell phone tower location data for a while. I wonder (a) if there are any Stingrays captured there and (b) if this with more data would be capable of building immediate alerting to Stringray use. I tend to think it could.

A couple months pre-snowden, I was robbed of a cell phone, and reported it to the cops, and had an interview with a detective.

Who told me I should not call and cancel the cell phone yet, because 'they had ways' of tracking it's use, wink wink, but we can't really tell you about the details, wink wink.

Honestly, if he had left out the smirking and "we can't tell you about the details", it probably wouldn't have occured to me that there was anything odd here, sure, the cops can issue a warrant or some such paperwork and get records from the phone company probably, who knows.

But with all the winking and smirking, I thought, geez, what the fuck, he says it's not supposed to be public information but he's telling me about it... should I, like, get in touch with the ACLU about this or something? I never did though.

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