We know the FBI doesn’t want anyone talking about Stingray cellphone snooping systems. Local law enforcement officials aren’t exactly forthcoming about this information either, citing eithernon-disclosure agreements or the US government itself as justifications for extensive cover-ups. Now, the FCC — which has been sort of on the sideline during these non-discussions — has waded into it, releasing a statement that directly contradicts a document released by the Tacoma Police regarding its use of Stingray devices.

Last month, Muckrock posted a heavily-redacted (everything but the two opening paragraphs) document it obtained from the Tacoma Police Department. In it, FBI Special Agent Laura Laughlin justified all the black ink that followed by name-dropping the FCC (the same agencyHarris misled in order to have its devices approved). [pdf link]

We have been advised by Harris Corporation of the Tacoma Police Department’s request for acquisition of certain wireless collection equipment/technology manufactured by Harris Corporation. Consistent with the conditions on the equipment authorization granted to Harris Corporation by the Federal Communications Commission (FCC), state and local law enforcement agencies must coordinate with the Federal Bureau of Investigation (FBI) to complete this non-disclosure agreement prior to the acquisition and use of the equipment/technology authorized by the FCC authorization.

The FCC is now saying that this is the first it’s heard of being part of the Stingray secrecy process.

We do not require that state and local law enforcement agencies have to complete one or more non-disclosure agreements with the Federal Bureau of Investigation prior to acquisition and/or use of the authorized equipment. We have no documents responsive to your request.

But that’s not entirely true. There is a requirement that almost exactly matches up with Agent Laughlin’s claims — one that Harris specifically requested and that the FCC granted.

As early as May 2010, Harris Corporation asked that the FCC put restrictions on law enforcement acquisition of its StingRay trackers, documents released to MuckRock by the FCC in response to another FOIA request show. Emails obtained by the ACLU of Northern California indicate that Harris made its request for licensing restrictions based on concerns from the FBI “over the proliferation of surreptitious law enforcement surveillance equipment.”

Here’s the request:

To further support its request for confidentiality, Harris underscores the need for confidentiality by requesting that the Commission condition the Harris license applications as outlined below to prevent and address concerns regarding the proliferation of surreptitious law enforcement surveillance equipment:

(1) The marketing and sale of these devices shall be limited to federal/state/local public safety and law enforcement officials only; and,
(2) State and local law enforcement agencies must advance coordinate with the FBI the acquisition and use of the equipment authorized under this authorization.

This request was granted by the FCC in 2012.

There are only slight differences in what’s being said by Laughlin and what was actually granted. The FCC requires (at Harris’ request) that local law enforcement coordinate with the FBI before purchase and use of Stingray devices. Laughlin’s statement appears to indicate that the FCCrequires the signing of an NDA, but that appears to be the FBI’s own inserted stipulation. Nothing explicitly states that the lack of an NDA means no Stingray purchase, at least not as far as the FCC is concerned. But it may keep law enforcement agencies from getting the FBI’s go-ahead.

So, is the FCC the “good guy” in this Stingray mess? Probably not, or at least not as blameless as it would first appear. Chris Soghoian, the ACLU’s principal technologist, points out that the FCC has actively pushed surveillance policies. Even if it hasn’t in this case, it’s quite obviously deferring to the FBI in this matter, basically stating (when you add the denial and subtract the granted stipulation), “Go ask your father the FBI.” The FCC can’t necessarily demand an NDA be signed before obtaining a cell tower spoofer, but it can make law enforcement route their requests through another government agency.

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