A powerful new surveillance tool being adopted by police departments across the country comes with an unusual requirement: To buy it, law enforcement officials must sign a nondisclosure agreement preventing them from saying almost anything about the technology.
Any disclosure about the technology, which tracks cellphones and is often called StingRay, could allow criminals and terrorists to circumvent it, the F.B.I. has said in an affidavit. But the tool is adopted in such secrecy that communities are not always sure what they are buying or whether the technology could raise serious privacy concerns.
The confidentiality has elevated the stakes in a longstanding debate about the public disclosure of government practices versus law enforcement’s desire to keep its methods confidential. While companies routinely require nondisclosure agreements for technical products, legal experts say these agreements raise questions and are unusual given the privacy and even constitutional issues at stake.
“It might be a totally legitimate business interest, or maybe they’re trying to keep people from realizing there are bigger privacy problems,” said Orin S. Kerr, a privacy law expert at George Washington University. “What’s the secret that they’re trying to hide?”
The issue led to a public dispute three weeks ago in Silicon Valley, where a sheriff asked county officials to spend $502,000 on the technology. The Santa Clara County sheriff, Laurie Smith, said the technology allowed for locating cellphones — belonging to, say, terrorists or a missing person. But when asked for details, she offered no technical specifications and acknowledged she had not seen a product demonstration.
Buying the technology, she said, required the signing of a nondisclosure agreement.
“So, just to be clear,” Joe Simitian, a county supervisor, said, “we are being asked to spend $500,000 of taxpayers’ money and $42,000 a year thereafter for a product for the name brand which we are not sure of, a product we have not seen, a demonstration we don’t have, and we have a nondisclosure requirement as a precondition. You want us to vote and spend money,” he continued, but “you can’t tell us more about it.”
The technology goes by various names, including StingRay, KingFish or, generically, cell site simulator. It is a rectangular device, small enough to fit into a suitcase, that intercepts a cellphone signal by acting like a cellphone tower.
The technology can also capture texts, calls, emails and other data, and prosecutors have received court approval to use it for such purposes.
Cell site simulators are catching on while law enforcement officials are adding other digital tools, like video cameras, license-plate readers, drones, programs that scan billions of phone records and gunshot detection sensors. Some of those tools have invited resistance from municipalities and legislators on privacy grounds.
The nondisclosure agreements for the cell site simulators are overseen by the Federal Bureau of Investigation and typically involve the Harris Corporation, a multibillion-dollar defense contractor and a maker of the technology. What has opponents particularly concerned about StingRay is that the technology, unlike other phone surveillance methods, can also scan all the cellphones in the area where it is being used, not just the target phone.
“It’s scanning the area. What is the government doing with that information?” said Linda Lye, a lawyer for the American Civil Liberties Union of Northern California, which in 2013 sued the Justice Department to force it to disclose more about the technology. In November, in a response to the lawsuit, the government said it had asked the courts to allow the technology to capture content, not just identify subscriber location.
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