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Cops Say NDA Kept Them from Notifying Courts About Cell Phone Tracking Gadget

samzenpus posted about 6 months ago | from the I-can't-say dept.

Privacy 235

schwit1 writes "Police in Florida have offered a startling excuse for having used a controversial 'stingray' cell phone tracking gadget 200 times without ever telling a judge: the device's manufacturer made them sign a non-disclosure agreement that they say prevented them from telling the courts. The shocking revelation, uncovered by the American Civil Liberties Union, came during an appeal over a 2008 sexual battery case in Tallahassee in which the suspect also stole the victim's cell phone. Using the stingray — which simulates a cell phone tower in order to trick nearby mobile devices into connecting to it and revealing their location — police were able to track him to an apartment."

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Abjectly false argument (5, Insightful)

Anonymous Coward | about 6 months ago | (#46389113)

Confidentiality agreements do not supersede the law, court orders, the constitution, or anything else. Private contractual agreements always take a back seat to binding Law and Court Orders.

The police department in question probably asked for an NDA to give them rationalization for breaking the law.

Re:Abjectly false argument (0)

Anonymous Coward | about 6 months ago | (#46389169)

The police department in question probably asked for an NDA to give them rationalization for breaking the law.

You certainly give the police a lot of credit.

Re:Abjectly false argument (0, Flamebait)

Anonymous Coward | about 6 months ago | (#46389303)

But you forget in the world we live in where Republicans control nearly all aspects of our lives, companies are more important than people since they are, in their view, super people. We have no rights. The agreements they force us into with corporations do supersede the law in their minds. That is why things are they way they are. Ignoring that will not make the problem go away.

Re:Abjectly false argument (5, Interesting)

Immerman (2627577) | about 6 months ago | (#46389331)

Indeed. If a contract requires you break the law, you are legally obligated to refuse to sign. Signing with the intent to obey the law would be fraud, and signing with the intent to break the law would be conspiracy to commit a crime.

Re:Abjectly false argument (5, Informative)

Anonymous Coward | about 6 months ago | (#46389483)

If a contract requires you break the law, you are legally obligated to refuse to sign

Not really. If contract is in violation of municipal, state, or federal laws, either in whole or in part, the contract is unenforcable. E.g. if your contract states you must smoke weed while performing some duty, it is illegal to smoke weed and so the contract would not hold up in court. However, most contracts have a provision which would only mark the unenforcable section invalid but due to seperation of parts the rest can be considered valid E.g. if your contract states you must not drive between certain hours and in another section states you must smoke weed, the provision would mean not smoking weed won't violate your contract but driving outside of the hours would.

I always look for contracts that have illegal provisions and make sure I sign the document. Then I can get out of the contract without worry.

Re:Abjectly false argument (0)

Anonymous Coward | about 6 months ago | (#46389493)

By the same standards, writing a contract that would require the other party to break the law would also be "conspiracy to commit a crime"?

Re:Abjectly false argument (3, Funny)

Immerman (2627577) | about 6 months ago | (#46389719)

Well, intent to commit conspiracy to commit a crime at least.

Re:Abjectly false argument (5, Interesting)

Aighearach (97333) | about 6 months ago | (#46389497)

False. Illegal portions of the contract are not enforceable, and you simply are NOT required to do those parts. And if you knew they were not enforceable, then there is no conspiracy. This happens frequently.

To have a conspiracy you have to have some action taken in furtherance of the crime. Signing the contract and then also taking a step to further the illegal actions, then the contract proves intent. But only once they already have you in those other details.

Re:Abjectly false argument (5, Interesting)

Jane Q. Public (1010737) | about 6 months ago | (#46389615)

"And if you knew they were not enforceable, then there is no conspiracy. This happens frequently.

But the police department is claiming they are enforceable. So by this logic, there is conspiracy, since they reasonably must have known it was not so. Not conspiracy with the other party, to be sure, but conspiracy to break the law.

To have a conspiracy you have to have some action taken in furtherance of the crime."

You mean like illegally tapping telephones then giving obviously bogus justifications to the court?

Re:Abjectly false argument (5, Informative)

causality (777677) | about 6 months ago | (#46389705)

You mean like illegally tapping telephones then giving obviously bogus justifications to the court?

Don't worry. No matter how many cases like this we know about, the next time you are in a courtroom and it's your word against the police officer's, you will lose. Every time.

So you see, they have everything under control.

Re:Abjectly false argument (0)

Anonymous Coward | about 6 months ago | (#46389353)

"false argument" says what it needs to. "abjectly" says you are so partisan I will need to look very carefully at your argument.

Re:Abjectly false argument (5, Interesting)

msauve (701917) | about 6 months ago | (#46389467)

Additionally, using one of those boxes would require court approval. Perhaps not for a traditional search warrant, but certainly to allow the police, who are not licensees of the radio frequencies involved, to operate these intentional transmitters. And that probably means federal court approval.

Re:Abjectly false argument (1)

Jane Q. Public (1010737) | about 6 months ago | (#46389665)

"Additionally, using one of those boxes would require court approval. Perhaps not for a traditional search warrant, but certainly to allow the police, who are not licensees of the radio frequencies involved, to operate these intentional transmitters. And that probably means federal court approval."

That's an interesting point. I wonder if the apellants in this case thought of it.

Sorry, I can't be compelled to testify (5, Funny)

grahamsaa (1287732) | about 6 months ago | (#46389135)

Sorry Judge, I can't be compelled to testify against my accomplice -- we signed a non-disclosure agreement.

Re:Sorry, I can't be compelled to testify (-1, Flamebait)

drainbramage (588291) | about 6 months ago | (#46389209)

Seems to work for the University of East Anglia.

Re:Sorry, I can't be compelled to testify (0)

Jane Q. Public (1010737) | about 6 months ago | (#46389761)

Hahahahahahahaha!

That's one of the funniest things I've read in a while.

Re:Sorry, I can't be compelled to testify (1)

Kenja (541830) | about 6 months ago | (#46389429)

Kind of like marriage.

What about the law? (1)

Anonymous Coward | about 6 months ago | (#46389141)

Since when does an NDA supersede the law? That's laughable, especially for law enforcement.

Well corporations (0, Offtopic)

future assassin (639396) | about 6 months ago | (#46389143)

do write the laws so ....

Re:Well corporations (0)

operagost (62405) | about 6 months ago | (#46389547)

Yes, like how the Apollo Alliance wrote the stimulus bill.

Purgery? Contempt of court? (0)

Anonymous Coward | about 6 months ago | (#46389149)

Last I heard: an NDA does not expempt you from testimony under oath, or indeed any other law. Journalists would just resort to this with sources, mobsters with flunkies, etc. Indeed: If a civil contract could pre-empt court's rights, I could just sign a contract making me killing people required (and, of course, undiscloseable).

Re:Purgery? Contempt of court? (1)

sideslash (1865434) | about 6 months ago | (#46389307)

What is "purgery"? Would that be illegal destruction of evidence, by purging it?

Re:Purgery? Contempt of court? (0)

Anonymous Coward | about 6 months ago | (#46389643)

I think it might be the state where all the toilets in the courthouse are backing up from over use. Too many purges all at once can do that.

Re:Purgery? Contempt of court? (2)

K. S. Kyosuke (729550) | about 6 months ago | (#46389663)

I've heard that purgery is a federal fellatio in the US.

Re:Purgery? Contempt of court? (0)

Anonymous Coward | about 6 months ago | (#46389777)

What is "purgery"?

Baby don't hurt me.

WTF???? (5, Interesting)

gstoddart (321705) | about 6 months ago | (#46389155)

Police in Florida have offered a startling excuse for having used a controversial 'stingray' cell phone tracking gadget 200 times without ever telling a judge: the device's manufacturer made them sign a non-disclosure agreement that they say prevented them from telling the courts

I'm sorry, but what?

You broke the law because if you'd told the courts you'd be breaking an NDA with the company?

How the hell can a police force enter into a contract which expressly requires them to break the law?? What genius lawyer signed off on that one?

Oh, sorry your honor, we couldn't tell you we were violating the law because we signed a contract?

That's ridiculous.

Re:WTF???? (1)

Anonymous Coward | about 6 months ago | (#46389253)

I think they call that "unconscionable" and so you could easily break the NDA in that case.

Re:WTF???? (4, Insightful)

sjames (1099) | about 6 months ago | (#46389405)

On one side, they had an NDA prevention any disclosures about the device or it's use. On the other, if they used it they were obligated to tell the courts about it.

The legal solution is simple and obvious: don't use the damned thing. It's the only way to obey the law and avoid breech of contract at the same time.

In a situation where you actually cannot obey the law and a contract at the same time, the contract term is null and void. No legal contract can require a violation of the law.

Re:WTF???? (0)

Anonymous Coward | about 6 months ago | (#46389427)

Tracking down a rape suspect by finding the phone they stole is illegal?

Re:WTF???? (3, Informative)

ganjadude (952775) | about 6 months ago | (#46389445)

of course not, but intercepting all other people in the areas communications is

Re:WTF???? (4, Informative)

mrchaotica (681592) | about 6 months ago | (#46389727)

Yes, if you don't have a warrant. And the police in this case indeed did not have one, since to get one they'd have to tell the judge about the device.

Re:WTF???? (4, Insightful)

Jaysyn (203771) | about 6 months ago | (#46389815)

Using illegally gathered location data (for the stolen phone as well as the other $LARGENUMBER people in the area) & then failing to get a warrant to enter the premises after being refused entrance by the suspect's girlfriend is where they fucked up. All evidence past that point is not admissible. Fruit of a poison tree & all that.

Because the police & DA couldn't follow the simple rules that they are supposed to, a thief & rapist is going to walk. We should be livid & LEOs should be getting fired because of this.

Re:WTF???? (4, Insightful)

Aighearach (97333) | about 6 months ago | (#46389517)

More likely, they simply lied and made up an excuse where they look stupid, to protect themselves against looking criminal.

Most likely the NDA requires that they ask the court to seal documents, if it mentions the courts at all; most likely it was to prevent them from telling the media, or anybody else.

Re:WTF???? (5, Informative)

Solandri (704621) | about 6 months ago | (#46389577)

You broke the law because if you'd told the courts you'd be breaking an NDA with the company?

They didn't break the law. TFS is written in a way that makes the reader presuppose the use of these devices is illegal without a warrant. From TFA:

The government has long asserted that it doesn't need to obtain a probable-cause warrant to use the devices because they don't collect the content of phone calls and text messages but rather operate like pen-registers and trap-and-traces, collecting the equivalent of header information.

They did not want to obtain a search warrant to enter the apartment âoebecause they did not want to reveal information [to a judge] about the technology they used to track the cell phone signal, the appellate judges note.

"[Wh]en police use invasive surveillance equipment to surreptitiously sweep up information about the locations and communications of large numbers of people, court oversight and public debate are essential,â the [ACLU] noted in its post.

So the current state of affairs is that there is no law (yet) concerning use of these devices, and some in the government are arguing that no law is needed. There being no law, law enforcement did not want to rock the boat by revealing the devices to the courts so that there might be a new law made (either through legislation or court precedent). The ACLU is arguing that there should be a law prohibiting their use without a warrant.

TFS is written as if the ACLU stance is the current state of affairs, and law enforcement sought to work around it. In fact it's the other way around. Use of these devices is currently legal, and law enforcement sought to keep it that way by not revealing them to the courts so that no ruling on their use would be made. The ACLU is trying to argue for a law requiring a warrant to use these devices.

Re:WTF???? (2, Insightful)

xevioso (598654) | about 6 months ago | (#46389813)

Why is it that posts which actually shed some light on what is actually happening in the situation are always at the bottom of a thread? This appears to be the sad state of affairs on /. Seriously, even if I disagree with someone, I always just scroll to the bottom of a thread to get something even remotely insightful about something.

Re:WTF???? (1)

Agent0013 (828350) | about 6 months ago | (#46389847)

So the current state of affairs is that there is no law (yet) concerning use of these devices, and some in the government are arguing that no law is needed. There being no law, law enforcement did not want to rock the boat by revealing the devices to the courts so that there might be a new law made (either through legislation or court precedent). The ACLU is arguing that there should be a law prohibiting their use without a warrant. .

That is like saying if I invent a new beam energy weapon that can cook your eyeballs into a goo and fry your brain until you die, it isn't illegal to use it as there is no law against using newly invented beam weapons to fry people. That is just plain absurd! It's illegal to tap people's phones without a warrant. Just because you are using a new piece of tech to do it does not make it legal!

Re:WTF???? (4, Insightful)

anagama (611277) | about 6 months ago | (#46389859)

Actually there is a law. The highest law. The 4th Amendment forbids general searches, which is the only thing this device enables.

Secondly, they want to apply the third party doctrine, specifically, if you share info with a phone company they can just hoover it up. But none of the people whose cell phones were affected made an agreement to share information with the cops directly -- the cops in this situation are not a third party, they're "the man" in the middle.

Re:WTF???? (1)

Atrox666 (957601) | about 6 months ago | (#46389619)

I guess when they said that they would tell the truth, the whole truth and nothing but the truth they committed perjury since they intended to not disclose to the court.

Surprisingly lazy (4, Interesting)

schneidafunk (795759) | about 6 months ago | (#46389157)

This is exactly a case where I am OK with tracking down the criminal through the cell phone. The warrant would absolutely have been granted if they bothered to ask for it.

FTA:
According to the appellate court judges, after a young woman reported on September 13, 2008 that she had been raped and that her purse, containing a cell phone, had been stolen, police tracked the location of her phone about 24 hours later to the apartment of Thomas’ girlfriend.

“The investigators settled on a specific apartment ‘shortly after midnight’ or ‘approximately 1:00 to 2:00 a.m.’ on September 14, 2008,” the court wrote. “For the next few hours, six or seven police officers milled around outside the apartment, but made no effort to obtain a search warrant.”

Re:Surprisingly lazy (4, Interesting)

gstoddart (321705) | about 6 months ago | (#46389273)

This is exactly a case where I am OK with tracking down the criminal through the cell phone. The warrant would absolutely have been granted if they bothered to ask for it.

Except that they didn't get a warrant, subsequently used the device in a bunch of other cases (again, without warrants) is mind boggling.

An NDA with a vendor is not a free pass to violate the law, and if the police are stupid enough to believe they can do anything they want because they signed an NDA, they're horribly mistaken.

A vendor of such things cannot compel you to violate the law. And they should have known this -- surely somewhere they have legal counsel who can say "well, that doesn't mean you can do this any time you like".

This is either stupidity and incompetence, or deciding you now have a loophole to do an end run around the law whenever you choose.

That's like telling your mom that when you bought your brother's bicycle for $0.10 her right to punish you was covered by an NDA. It simply doesn't work that way. She will still punish you, and the courts need to really do the same here.

Re:Surprisingly lazy (0)

Anonymous Coward | about 6 months ago | (#46389379)

I'm not sure they would have needed a warrant in this case. presumably the woman granted permission to track her lost phone. The fact that it happened to be in the hands of a thief and rapist is inconsequential.

It's just like my house, I can let the police in, if I so desire. If there happens to be a thief hiding in my closet, they don't all the sudden need a warrant because I invited them in.

Now, all the OTHER times they used it without warrants were likely illegal, but THS ONE they should be okay on.

Re:Surprisingly lazy (5, Informative)

memojuez (910304) | about 6 months ago | (#46389607)

If you RTFA, you will see that the Police forced their way into the apartment after the suspect's girlfriend would not let them in with-out a warrant. the police did not get a search warrant to enter the residence to ... “because they did not want to reveal information [to a judge] about the technology they used to track the cell phone signal,” the appellate judges note.

Also from TFA: Authorities opted not to get a warrant either for the use of the Stingray or the search of the apartment, simply because they didn’t want to tell the judge what they were using to locate the suspect...

This is a two-fold disregard of the constitution.

Re:Surprisingly lazy (1)

DMiax (915735) | about 6 months ago | (#46389311)

Agreed. These assholes might have screwed up the case for the prosecutor and the end result might be that a rapist walks away free, all because they did not feel like doing their homework. They should face criminal charges.

Re:Surprisingly lazy (2)

number17 (952777) | about 6 months ago | (#46389375)

In this case, couldn't the police have asked the owner of the phone (the victim) for permission to track the device, negating the need for a warrant?

Re:Surprisingly lazy (1)

TheCarp (96830) | about 6 months ago | (#46389585)

I am inclined to agree. However, by the same token, the alleged rape is over. Getting warrant is always going to be preferable to not getting one according to the courts. Getting a warrant will always result in a tighter case than not getting one..... the default action in ALL cases where there is no immediate emergency and thus a reason to do otherwise, should be to get the damned warrant!

It seems ridiculous to me that they would ever avoid getting a warrant, even if they don't technically need one.... get it anyway!

Every time they decide not to, they are risking the entire case they are trying to make.

Re:Surprisingly lazy (1)

msauve (701917) | about 6 months ago | (#46389591)

They would have needed court approval to even operate the device, since it transmits on frequencies they're not licensed to use. And, I suspect that would have to be federal court authorization, since RF is under federal jurisdiction.

Re:Surprisingly lazy (1)

sjames (1099) | about 6 months ago | (#46389597)

That's the real problem here. A warrant would have been a slam dunk in this case since presumably the rightful owner of the cellphone was happy to have it tracked.

The simple fact is that more and more police believe themselves to BE the law and no longer care to put up with silly things like judges, courts, the public, or the Constitution.

It's sad that they let their baggage damage what would otherwise been a clear cut prosecution. If they can't find a way to lose that baggage, they can't be an effective police force. If that's the case, I see no reason for them to continue at all.

Well... (2, Interesting)

Anonymous Coward | about 6 months ago | (#46389175)

Assuming the NDA can be held to apply in this case (which in fact it would not) -

Not being able to tell the court obviously precludes being able to ask them for authorization to use the device. This does NOT mean they can use it without authorization from a court, but in fact the exact opposite: the NDA would make it completely unusable, as they can't get that required authorization.

Just wow.

Re:Well... (1)

Immerman (2627577) | about 6 months ago | (#46389351)

Yeah, I hope they nail them to the wall over this. Somehow though I doubt that will happen.

Thank God! (0)

Anonymous Coward | about 6 months ago | (#46389179)

Thank God we have the Constitution to prevent legal bondage like this!

Why just not give everyone the finger? (0)

Anonymous Coward | about 6 months ago | (#46389199)

It's faster.

Misspelling? (0)

Anonymous Coward | about 6 months ago | (#46389203)

Florida police: So this NSA tracking device, we can't tell anyone about it, right? For national security and all, I guess?
Manufacturer: Yyyyyeeeessssss? And the form you're signing is an N "S" A form, too. So, don't tell anyone. Especially not regular judges because we only answer to FITA...FICA? Eh, that secret court that we use instead of the normal courts.
Florida police: Sounds legit.

You are cops. (0)

Anonymous Coward | about 6 months ago | (#46389205)

You are cops, this bullshit does not apply to you.

Therefore, it is an excuse for your pathetic behavior.

QED.

Interesting . . . (1, Insightful)

Kimomaru (2579489) | about 6 months ago | (#46389207)

So, I'm not a lawyer, but I guess the thinking applied here is that an NDA can be used to not comply with the law? So, by that reasoning, can anyone scribble an NDA on a napkin and get away with anything?

Re:Interesting . . . (1)

Immerman (2627577) | about 6 months ago | (#46389389)

Only if you're in Law Enforcement, in which case the de-facto law seems to be: Do whatever you want, but be sure to have at least a flimsy excuse ready if you get caught. Otherwise we may have to sentence you to a few months paid vacation to think about what you've done.

NDA Law? (3, Insightful)

CanHasDIY (1672858) | about 6 months ago | (#46389211)

Since when does a contract, any contract, supersede the legal system?

Oh, right - they don't, and this bullshit excuse for illegal use of surveillance equipment is exactly the out this scumbag rapist needs to get acquitted.

Nice work, morons.

Re:NDA Law? (1)

CanHasDIY (1672858) | about 6 months ago | (#46389237)

FWIW, the title to this comment should be "NDA > Law," but somebody forgot that comment subjects are governed by the same formatting rules as the comments themselves...

Re:NDA Law? (1)

Impy the Impiuos Imp (442658) | about 6 months ago | (#46389443)

"Text" is not text on Slashdot. You cannoy begin a sentence with an elipsis, which is useful in certain sarcasms.

Re:NDA Law? (1)

almitydave (2452422) | about 6 months ago | (#46389871)

...says you!

Re:NDA Law? (1)

sjames (1099) | about 6 months ago | (#46389629)

That's what happens when people forget that the rules apply to everyone everywhere eh?

Somehow appropriate.

Re:NDA Law? (1)

CanHasDIY (1672858) | about 6 months ago | (#46389849)

That's what happens when people forget that the rules apply to everyone everywhere eh?

Somehow appropriate.

Hey, it's not my fault, I signed an NDA!

Re:NDA > Law? (1)

memojuez (910304) | about 6 months ago | (#46389631)

Fixed that for you?

Re:NDA Law? (0)

Anonymous Coward | about 6 months ago | (#46389703)

The idea is that even though one rapist might get off free, law enforcement personnel everywhere will obey the law much more carefully from now on!

I'd rather have one rapist avoid prison, than thousands of cops breaking the law on a daily basis!

Re:NDA Law? (1)

Type44Q (1233630) | about 6 months ago | (#46389755)

Nice work, morons.

If their goal was to obtain an iron-clad judgement against the alleged offender, they've presumably failed. However, I very much doubt that they give a shit about that. If their goal is something else entirely (which I strongly suspect it is), then there's hardly anything moronic about what they did. Unconstitutional and un-American, definitely... immoral and lacking integrity, certainly. But moronic? It's a bit moronic to make assumptions about their goals, IMHO..

Not part of the case? Hmmm (2)

TheCarp (96830) | about 6 months ago | (#46389249)

âoeFor purposes of decision, however, we assume the police acted lawfully up to the point that they forcibly entered the apartment,â they wrote in their November opinion. âoeIt is not clear that there was ever a ruling on the legality of the cell phone tracking methods used below.â

So.... this particular question is excluded from this particular review, and that part of the investigation "we assume the police acted lawfully".

Am I correct in reading that this means; should the appeal fail; that another appeal claiming that the actions leading up to the search were not legal should be expected? Seems that such an assumption would mean there is another question which could potentially come into play in another review.

Seems like the police really screwed the pooch on this one. From a civil rights POV it is pretty clear they should toss the evidence and let this rapist go. Its sad when rapists get to go free on technicalities but, we can't forget,.....this is the Police's fault.

They risked letting a rapist go free so they could hide their techniques; and now....no only did they fail at hiding their techniques, but also failed to protect the community.

Re:Not part of the case? Hmmm (3, Insightful)

Immerman (2627577) | about 6 months ago | (#46389569)

Indeed. They say that bad cases make bad law, and I'd say this one qualifies in spades. Either a rapist escapes justice, or we get some really horrible precedent established with regards to government surveillance. Then again maybe not - most rapists don't conveniently get caught with their hand in the cookie jar, hopefully the rest of the evidence is convincing enough that the guy rots anyway, even if the arrest itself was blatantly illegal.

I really wish we'd at see some cases of individual police officers convicted for blatant disregard of the constitution - not the police department, as is usually the case, with penalties being passed back to the tax payers, I want to see the individual officers responsible doing hard time. I can see granting a little leeway for conventional law - there's way too many of those for any person to keep track of what is and is not illegal, but the constitution is the supreme law of the land, short enough to read completely on your lunch break, and mostly written in clear and concise language. There's no fucking excuse for those whom we grant the sacred trust of enforcing the law to *ever* violate the Constitution.

Re:Not part of the case? Hmmm (1)

Arker (91948) | about 6 months ago | (#46389581)

"Am I correct in reading that this means; should the appeal fail; that another appeal claiming that the actions leading up to the search were not legal should be expected? Seems that such an assumption would mean there is another question which could potentially come into play in another review."

I do not think you are right, though I dont have all the data and could be wrong. But the implication I took was that the appeal neglected to challenge the initial location. Generally speaking, if you dont challenge that issue on your first appeal, you are not allowed to raise it later. YMMV, IANAL and I am not familiar with all the specifics of the case.

Re:Not part of the case? Hmmm (1)

sjames (1099) | about 6 months ago | (#46389689)

If only I had mod points!

It may be common to complain about the defense attorney getting someone off on a 'technicality' and such, but that's not really what is happening here.

First, civil rights are not at all a 'technicality'. Getting a warrant is far from a technicality.

Put simply, a rapist is going to be back on the streets because the police screwed the pooch, hard. Apparently, they've made it a habit. They should be ashamed of themselves.

Why bother with "parallel construction" (0)

Anonymous Coward | about 6 months ago | (#46389261)

We can just use our own equipment, and still don't need a warrant.
At what point do we declare that the "fruit of the poisoned tree" just results in the court case being thrown out?

Because a warrant is hard (-1, Troll)

silas_moeckel (234313) | about 6 months ago | (#46389267)

So they tracked a stolen cellphone that they failed to even turn off 24 hours later. While the hardware they used to do it was overkill and invasive (and should be illegal without a warrant) there is nothing wrong with tracking down a stolen device.

They then sat around for hours because they did not want to admit to using the device by getting a warrant. Ended up illegally forcing entry.

I do wish they were shot and killed while committing this crime (and am smart enough to know every string would be pulled to have it appear to have been legal if they were). Correct response is to see the police that did this jailed, we have to get back to yes you always need a warrant unless lives are obviously in danger. We need to roll back to before no knock warrants were the norm and return to civil society.

Incredible Bullshit (1)

MarkvW (1037596) | about 6 months ago | (#46389271)

The cops have two choices: (1) Breach the contract and pay damages; or (2) Violate the Constitution.

The choice is obvious and the excuse is absurd.

Re:Incredible Bullshit (0)

gstoddart (321705) | about 6 months ago | (#46389321)

Well, before anybody signed that, they should have understood that they couldn't legally enter into that contract, and that it sure as hell didn't give them permission to break the law.

Anybody who read that NDA and said "well, we can still use it, we just can't tell anybody" is a complete moron.

Which means either they didn't know and understand the law, or they deliberately decided to skirt around it.

Re:Incredible Bullshit (1)

Holi (250190) | about 6 months ago | (#46389325)

Screw that, it is an unenforceable clause in the contract as it requires a party to break the law.

Re:Incredible Bullshit (0)

Anonymous Coward | about 6 months ago | (#46389391)

It's illegal for a contract to require you to break the law and I've never seen a contract that didn't say invalid portions are invalid. There was no breach of contract no matter what they did. It was violate the constitution or not violate the constitution and they decided to violate it.

The correct answer (1)

Immerman (2627577) | about 6 months ago | (#46389611)

You forgot the correct answer:
(3) Don't purchase hardware or services that you are contractually prohibited from using legally

so,.... (1)

ganjadude (952775) | about 6 months ago | (#46389301)

when do these cops (who are supposed to uphold the law) going to be discharged for breaking the law?

The example (0)

Anonymous Coward | about 6 months ago | (#46389381)

I don't know about all the cases but surely in the example given the police had the permission of the owner of the phone to track it...

Re:The example (2)

ganjadude (952775) | about 6 months ago | (#46389431)

you must not know how these devices work. They act as a cell tower collecting info from ALL phones in the area, the other people in the area did not give them permission to intercept their calls

Makes sense. (1)

Minwee (522556) | about 6 months ago | (#46389411)

"But your hohhhhh-norrrr... We PROMISED to break the law! We pinky swore and EVERYTHING. What are we supposed to DO?"

Judicial SYSTEM (0)

Anonymous Coward | about 6 months ago | (#46389435)

The police get their legal authority from the judge. They can't agree to withhold information from their boss, unless their boss tells them to. Yes, this does happen -- a group which gets letters from the public can be told to not pass on ideas, so outsiders can't claim that a company stole their idea.

Legality? (1)

jtara (133429) | about 6 months ago | (#46389439)

Are these devices even legal? What country?

I know know that FCC regulations in the U.S. are regularly flouted by the use of similar "range booster" devices that you can get at Fry's, etc. but they are illegally imported and sold.

I'd imagine there are exceptions for law enforcement, but I'd also imagine that the law enforcement agency has to at least do some sort of registration with the FCC.

I'm guessing that the manufacturer just doesn't want to get in trouble with the FCC...

Wouldnt this make the FL cops domestic terrorists? (1, Troll)

detain (687995) | about 6 months ago | (#46389461)

Commiting acts of espionage on american citizens on american soil combined with signing contracts to violate the constitution, puts them somewhere between the mafia, spies, or domestic terrorists. I hope the guy charged with sexual battery doesnt go free because of something like this, being able to find him by breaking the law doesnt make him less guilty, and it doesnt seem like the evidence against him was a result of breaking the law , only his capture. I hope he gets to stay in jail and those that had anything to do with that NDA go to jail with him.

Lousy argument (1)

Facekhan (445017) | about 6 months ago | (#46389503)

It would seem like the victim can consent to the location tracking of her stolen cell phone. No warrant necessary or certainly an easily obtained one.

Now if they tracked the perpetrators cell phone, that would require a warrant under SCOTUS rulings I've seen.

I don't think a civil NDA between the state and a government contractor has any power over a criminal case and it certainly does not override the 4th amendment.

Re:Lousy argument (1)

suutar (1860506) | about 6 months ago | (#46389785)

The warrant question is not for the tracking, it's for entering the house without consent. They didn't want to get a warrant because they didn't want to tell a judge how they found the house. Now the evidence they gained by entering the house is tainted and excluded. The moral is they were frigging stupid to use equipment they couldn't tell a judge about.

Re:Lousy argument (1)

Jaime2 (824950) | about 6 months ago | (#46389843)

It would seem like the victim can consent to the location tracking of her stolen cell phone. No warrant necessary or certainly an easily obtained one.

Which is why it is so ridiculous that they didn't get one. Illegal actions committed in secret by authorities continues until they eventually screw up. Unfortunately, the climate has changed so that there is almost no down side to getting caught. In the past, agencies treaded very lightly near the edge of what's legal because when you got caught, you were gone. Today, getting caught means very little.

I would love to see 200 convictions overturned and a big billboard put up with a group photo of fifty murderers and rapists with the caption "These people are all free because of the choices of {{insert name of responsible idiot here}}."

Burner phone + Faraday cage = no tracking. (0)

Anonymous Coward | about 6 months ago | (#46389511)

Don't use the phone AT ALL unless you are on the move.
Best not to use it if you are in a car you can be associated with
via some database.

Before you go to your hiding spot, get rid of the phone or
put the phone inside a metal container which will prevent
the phone from sending or receiving signals. Do not
remove the phone from its metal container until you are
a significant distance away from your hiding spot.

Wow, let's try this! (0)

bradley13 (1118935) | about 6 months ago | (#46389513)

Situation 1: Private citizen is in front of a court; the judge says the defendent must produce certain documents. Defendent says "sorry, judge, I refuse; I signed a private contract promising that I would never reveal that information". Judge says: To jail with you for contempt of court. Do this 200 times, and spend a long time in jail.

Situation 2: Police want to do a search, the law says they need a warrant. The police say "sorry, judge, we signed this here NDA". Two hundred times they did this. Anyone believe the police are going to jail here?

Forcefully entering the apartment for a physical search, also without a warrant, is just added some whipped cream on top...

Re:Wow, let's try this! (1)

DaveV1.0 (203135) | about 6 months ago | (#46389649)

That is a false comparison. In the second case the judge never tells the police to produce a document as in the first, thus there is no way for the police to be in contempt of court.

In situation 2, it is quite possible that 200 cases will now have evidence thrown out, appeals filed, etc.

FCC (1)

Anonymous Coward | about 6 months ago | (#46389555)

Since they were operating it illegally, I wonder what FCC would have to say if they were to receive a radio interference complaint (probably under category "Wireless Telephone/Interference to non-emergency devices/Cell Phone, GPS and Wi-Fi jammers").

Fr0st pist (-1, Flamebait)

Anonymous Coward | about 6 months ago | (#46389561)

task. Re5earch [goat.cx]

Contract negotiations (1)

phorm (591458) | about 6 months ago | (#46389625)

Police: Hey, can you add something to the contract to prevent us from revealing use of your device, so that we have an excuse not to ask for a warrant. We'll pay an extra 10%
Vendor: Sure! Doesn't hurt us, and it's worth more money.

FCC License? (0)

Anonymous Coward | about 6 months ago | (#46389627)

I wonder if the cops that operated the equipment had the proper license from the FCC.

As I recall, it is a felony to broadcast on certain frequencies if you do not have the proper FCC Ticket.

Let's lock them up,

Independent experts? (1)

godel_56 (1287256) | about 6 months ago | (#46389693)

I don't think the cops should be using these things at all.

What I think should happen is they get a warrant from a judge, then bring in an independent expert to do the trace, such as someone from the FCC or a security officer from the telco.

Much less chance of "fishing expeditions" and misuse by the cops.

The Real Culprits (2)

Tokolosh (1256448) | about 6 months ago | (#46389701)

You can blame the cops, manufacturers, criminals all you want, but the root cause of these shenanigans is that the courts are allowing it to happen.

When we have arrived at the point where everyone shrugs their shoulders, and says "Slap on the wrist, at most", then we find ourselves in a sad situation.

The third branch of government is asleep at the wheel, or holding its ankles, depending on your choice of metaphor. But the cue from SCOTUS is, do what you want. They have abdicated their responsibility as a bulwark against the inevitable excesses of the executive and legislative branches.

Time for some real consequences for contempt of Constitution and sworn oath to uphold same.

Beta testing! (1)

jtara (133429) | about 6 months ago | (#46389747)

Ah, it appears Harris is doing beta testing, and handing these out to police departments to test. So, they don't want the cops blabbing to their competitors.

1. Does Harris have the proper permissions to do this in the wild like this?

2. It'd be an interesting question whether a civil contract like this can trump disclosure requirements. Seems to me there's no way the cops can make use of the results of testing. Maybe they can test, but if they act on it, they have to violate either the NDA or the law.

Bad logic (1)

RichMan (8097) | about 6 months ago | (#46389763)

If they need a warrant for something, but they can't tell the judge because of an NDA then they can't do anything.
Because the NDA says they can't tell the judge does not mean they get to bypass the Judge, it means they can't get the warrant and they can't do the investigation.

It means saying to the manufacturer, "We would really like to use your device but we need to get the judges permission, either you modify the NDA or we can't use your device."

The cops are in the wrong here. The manufacturer is stupid but it is the cops that went along with it and violated the law.
The courts are at fault though for letting the cops get away with it.

Would this work with bank accounts (1)

gurps_npc (621217) | about 6 months ago | (#46389771)

I am sorry your honor, the reason I did not inform you of my Caymen Island bank account is that when I signed up for it I had to sign a non-disclousure agreement preventing me from telling anyone, even the IRS that I had such an account.

The logical conclusion (1)

Jason Levine (196982) | about 6 months ago | (#46389799)

I wonder what the logical conclusion of this would be if it's allowed to stand?

Officer: "I'm sorry, but I can't confirm or deny that my fellow officers and I beat that civilian. Our contract with the dashboard camera company specifically disallows the use of the footage in cases such as this."

Businessman: "We can't confirm or deny the dumping of that toxic waste in the local playground due to an NDA with We Dump It 4 U, Inc."

Politician: "I can't confirm or deny going on an all expenses paid trip with Lobbyist X due to an NDA that we signed just before I left for vacation."

Average Citizen: "....." --- Nothing because everything will remain the same for us.

So if I'm reading this right (2)

gman003 (1693318) | about 6 months ago | (#46389823)

The company that wrote the NDA should get charged with conspiracy to commit perjury, right? Maybe that's not the exact legal term, but it definitely ought to be illegal to write a contract requiring one party to commit a crime.

Need a warrant to use a flashlight? (1)

tomhath (637240) | about 6 months ago | (#46389835)

If I'm hiding in a dark alley do the police need a court order to use a flashlight? How is this any different?
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