Judge orders Sheriff’s Office in New York to disclose StingRay secret surveillance documents

Reuters/Eddie Keogh

Reuters/Eddie Keogh

Police in western New York state have been ordered to reveal secret documents containing information on the purchase and use of surveillance technology that collects data from cellphones.

On Tuesday, a New York State Supreme Court judge said that Erie
County’s top law enforcement agency must turn over documents
concerning its use of a spy tool that gives authorities the
ability to collect identifying information on groups of people,
including individualized location data, by mimicking the behavior
of cellular phone towers.

The surveillance tool, a cell site simulator marketed to police
departments by Harris Corp. of Florida as a “StingRay,” has
become increasingly popular among law enforcement across the
United States in recent years. When the New York Civil Liberties
Union (NYCLU) evoked the state’s Freedom of Information Law to
request details about the Erie County Sheriff’s Office use of the
spy technology, however, their demands were denied on account of
claims from the police that disclosing any records would, among
other factors, reveal trade secrets and criminal investigative

The NYCLU challenged the Sheriff’s Office’s rejection last
November, and State Supreme Court Justice Patrick NeMoyer ruled
this week from the seat of the county in Buffalo, NY that ESCO
must indeed turn over a trove of StingRay-related papers,
including purchase orders, internal reports and correspondence in
its possession involving Harris Corp., contrary to law
enforcement’s claims that the documents are exempt from public
records requests.

“The court today has confirmed that law enforcement cannot
hide behind a shroud of secrecy while it is invading the privacy
of those it has sworn to protect and serve,”
NYCLU staff
attorney Mariko Hirose said in a statement. “The public has a right to
know how, when and why this technology is being deployed, they
deserve to know what safeguards and privacy protections, if any,
are in place to govern its use.”

NeMoyer ruled that among the information sought by NYCLU are
files “of quintessentially compelling interest to and of
undeniable impact upon the taxpaying public.”

Specifically, NeMoyer ordered the Sheriff’s Office to produce
original copies of order forms for two surveillance systems, the
proprietary software for each and training classes purchased from
Harris Corp, amounting to a total of around $350,000 of taxpayer
money on spy tools. Additionally, the court says the county must
turn over an internal report accounting for the department’s use
of the system from May 2010 to October 2014 which, according to
NeMoyer, reveals that authorities only obtained a court order
once during that four-year span before using a StingRay to scoop
up location data.

Also ordered by the court to be released is a non-disclosure
agreement that the Federal Bureau of Investigation gave the
Sheriff’s Office to sign before it could allow the agency to
acquire or use any such surveillance tools. According to
NeMoyer’s review of the document, the FBI told county officials
in the document that they should seek the 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.”

“If that is not an instruction that affects the public,
NeMoyer wrote, “nothing is.”

John A. Curr III, the director of the NYCLU’s Western Regional
Office, said that “the Erie County Sheriff has claimed
military grade secrecy to prevent the release of information
about how it uses StingRays against its own residents

But this is not Iraq or Afghanistan – this is Buffalo. And
we have a right to know what the Sheriff is doing to us in the
name of keeping us safe
,” Curr said in a statement.

Documents obtained through Freedom of Information Act requests
filed elsewhere in the US have revealed that StingRays are
routinely sold to police department pursuant to the conditions of
non-disclosure agreements similar to the one given to officials
in Erie County. Earlier this week, the New York Times published an investigative report on the use
of NDAs in connection with surveillance tech in which journalist
Matt Richtel acknowledged that “nondisclosure agreements make
it hard to know how widely the technology has been adopted

Nevertheless, Richtel wrote that “news reports from around
the country indicate use by local and state police agencies
stretching from Los Angeles to Wisconsin to New York

READ MORE: Florida police used warrantless
‘Stingray’ surveillance over 1,800 times

In Erie County, local officials’ reasoning with regards to
rejecting NYCLU’s requests “could never have made any sense,
and certainly makes no sense in light of subsequent
,” Judge NeMoyer ruled this week. With regards to
the NDA, the judge wrote that “the Court must conclude that
the document constitutes inter-agency material but nevertheless
is not exempt from disclosure pursuant to that exemption inasmuch
as it sets forth almost nothing but ‘instructions to staff that
affect the public

“In essence, those instructions are to conceal from the
public the existence, technological capabilities or uses of the

In issuing his 29-page order this week, NeMoyer also voiced
concerns over the potential constitutional violations afoot as a
result of the agency’s use of StingRay technology.

“Clearly, even apart from any concerns about the ‘dragnet’ or
general search capabilities of the device, its employment by law
enforcement officers to acquire information of the foregoing
type, even if not especially within the context of a targeted
criminal investigation, has implications under the Fourth
” as well as state and local statutes, NeMoyer

“The United States Justice Department is apparently of the
view, as are some other law enforcement agencies, civil liberties
advocates and courts, that at the very least a pen register or
trap and trace order must be obtained before a cell site
simulator may be used to ‘ping’ and thereby approximate the
location of a particular cell phone and certainly before
ascertaining any calling information.”

According to Buffalo’s WIVB News, the Sheriff’s Office said Tuesday
that they will review the court’s decision before deciding if and
how to move forward.

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