Say what you will about the Baltimore PD and its cell tower spoofers (like… “It would rather let accused criminals go than violate its [bogus] non-disclosure agreement with the FBI…” or “It hides usage of these devices behind pen register/trap and trace warrants and then argues the two collection methods are really the same thing…”), but at least it’s making sure the hundreds of thousands of dollars it’s spent on the technology isn’t going to waste.
On Wednesday, Baltimore police Det. Emmanuel Cabreja said the department has deployed the device, called Hailstorm, and similar technology about 4,300 times since 2007.
As the AP notes, the number of deployments admitted to here is the largest ever made public. This doesn’t necessarily mean the rate of usage (more than once a day, on average) is out of the ordinary, however. Thanks to the very restrictive non-disclosure agreement the FBI forces law enforcement agencies to sign (while falsely claiming “the FCC made us do it!”), information on cell tower spoofers has very rarely been disclosed.
Det. Cabreja confirmed the ultra-restrictive terms of the FBI’s NDA, which forbids law enforcement agencies from producing any information on Stingray devices, no matter who’s asking for it.
Cabreja said under questioning from defense attorneys that he did not comply with a subpoena to bring the device to court because of a nondisclosure agreement between the Baltimore police and the Federal Bureau of Investigation.
“Does it instruct you to withhold evidence from the state’s attorney and the circuit court of Baltimore city, even if upon order to produce?” asked defense attorney Joshua Insley.
“Yes,” Cabreja replied, saying he spoke with the FBI last week about the case.
There’s nothing quite like hearing confirmation that two law enforcement agencies worked together to withhold information from a party being prosecuted by directly violating a court order. But it gets even better. The Baltimore PD’s NDA was made public, and it shows the State’s Attorney’s office signing off on withholding Stingray information from judges and defendants, as well as agreeing to toss cases if exposure seems unavoidable. In contrast, the Erie County Sheriff’s Department’s agreement obtained by the NYCLU only contained signatures from law enforcement officials.
The courts — at least in Baltimore — seem to be tiring of this secrecy. Baltimore judge Barry Williams has previously questioned the Baltimore PD’s citation of its non-disclosure agreement with the FBI, with one memorably pointing out that the PD “doesn’t have a non-disclosure agreement with this court.” Unfortunately, if the Baltimore PD prioritizes its NDA over its obligation to obey court orders and turn over requested evidence, then it does actually have an NDA “with the court,” albeit one the court never agreed to. If the FBI says Stingray info isn’t going to be turned over — no matter who’s asking for it — that information will remain hidden, even if it means tossing criminal cases.