Non-Disclosure Agreements Between FBI and Local Law Enforcement for StingRay

 

Here is a collection of all of the non-disclosure agreements (NDAs) between the FBI and local/state law enforcement agencies for purchases of cell site simulators that have been disclosed to date, in order by the date on which they were signed:

Here is a list of all of the NDAs between the FBI and local/state law enforcement agencies when the FBI assists a local or state law enforcement agency that have been disclosed to date, in order by the date on which they were signed:

If you are aware of any additional NDAs, please let me know: @mlacabe

 

Jun 072015
 

In a May 28, 2015, response to a public records request, the Minnesota Department of Public Safety, Bureau of Criminal Apprehension (BCA), released an unredacted non-disclosure agreement with the Federal Bureau of Investigation (FBI). Despite releasing the unredacted NDA, the BCA still claims that portions of the Harris Corporation Terms and Conditions, descriptions of what it purchased and their prices are still exempt from disclosure:

It should be noted that portions of these documents have been redacted pursuant to Minnesota Statute 13.82, subd. 25 as they would reveal deliberative processes or investigative techniques of this agency that would disclose the existence of and the capabilities provided by cellular exploitation equipment to the public. Disclosure of the redacted portions of the documents would reveal sensitive technological capabilities possessed by the law enforcement community and may allow individuals who are the subject of investigation to employ countermeasures to avoid detection by law enforcement.

Credit goes to Rich Neumeister and the Minneapolis Star Tribune for forcing the Minnesota BCA to release a redacted NDA between the BCA and FBI in November 2014.

In this latest release, the BCA included unredacted and redacted versions of the NDA, entitled “Re: Acquisition of Wireless Collection Equipment/Technology and Non-Disclosure Obligations” and dated June 5, 2012.

The BCA also released an email from the FBI, advising it on how to prevent the NDA from being publicly disclosed.  That email from a Supervisory Special Agent at the FBI states,

Hello Andrew,

(U/LES) Thank you for talking with me yesterday about your pending disclosure request. As stated in our conversation, the protection of cell site simulator (CSS) information is a concern for all law enforcement agencies in the U.S. In light of the importance of the lawful usage of the CSS gear, my unit would like to assist you in protecting the data associated with the CSS gear from exposure to counter measures in criminal, terrorism, and foreign intelligence investigations. The first layer of protection for the CSS gear is the Non Disclosure Agreement (NDA), which your agency has signed in order to receive the CSS gear. From our conversation yesterday, my understanding is that you are being asked to disclosure all or part of the NDA. In order to clarify our position, I have attached a letter that the FBI has created for the purpose of articulating the law enforcement and legal support for protecting the NDA. We can send a signed copy of the letter to a government official, if you believe that will assist you in protecting the NDA. Please note that the letter is marked (LES).

(U/LES) In addition, you mentioned that the requestor has claimed that other disseminations of CSS information have appeared in the public view, which classifies them as “public record” pursuant to Minnesota’s laws, and therefore are subject to disclosure by your agency. When possible, would you be willing to send a sample of such information as we may be able to clarify the circumstances of the dissemination? Some disseminations may have been conducted unlawfully and therefore should not be considered “public record” or be subject to further authentication. In addition, we would like to be in a position to assist you in determining the scope and type of your pending response, so if we could set up a meeting with our FBI legal counsel and your office, that would be greatly appreciated.

A comparison of the redacted and unredacted versions of the NDA shows that the information redacted had nothing to do with the technical details or capabilities of the Harris Corporation equipment, but were mostly about preventing disclosure to the public, news media, and judicial system. One heavily redacted paragraphs states that the BCA should seek dismissal of a case in order to prevent disclosure of information about the Harris Corporation equipment. The document also redacted portions of FBI addresses, the name and division of the Assistant Director at the FBI, and the other signatories from the BCA. Here is the remaining text that was redacted in the NDA:

in press releases, in court documents, during judicial hearings, or during other public forums or proceedings

for the sale of the equipment/technology.

met the operator training standards identified by the FBI and’ are certified to conduct operations.

coordinate with the FBI in advance of its use of the wireless collection equipment/technology

the wireless collection equipment/technology or any software, operating manuals, or related technical documentation (including its technical/engineering descriptions) and capabilities)

concerning the wireless collection equipment/technology or any software) operating manuals, or related technical documentation (including its technical/engineering description(s) and capabilities)

wireless collection equipment/technology or any software, manuals, or related technical documentation

in any civil or criminal proceeding, use or provide any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (including its technical/engineering description(s) and capabilities) beyond the evidentiary results obtained through the use of the equipment/technology including, but not limited to, during pre-trial matters, in search warrants and related affidavits, in discovery, in response to court ordered disclosure, in other affidavits, in grand jury hearings, in the State’s case-in-chief, rebuttal, or on appeal, or in testimony in any phase of civil or criminal trial, without the prior written approval of the FBI. If the Minnesota Bureau of Criminal Apprehension learns that a District Attorney, prosecutor, or a court is considering or intends to use or provide any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (including its technical/engineering description(s) and capabilities) beyond the evidentiary results obtained through the use of the equipment/technology in a manner that will cause law enforcement sensitive information relating to the technology to be made known to the public, the Minnesota Bureau of Criminal Apprehension will immediately notify the FBI in order to allow sufficient time for the FBI to intervene to protect the equipment/technology and information from disclosure and potential compromise.

at the request of the FBI, seek dismissal of the case in lieu of using or providing, or allowing others to use or provide, any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (beyond the evidentiary results obtained through the use of the equipment/technology), if using or providing such information would potentially or actually compromise the equipment/technology. This point supposes that the agency has some control or influence over the prosecutorial process. Where such is not the case, or is limited so as to be inconsequential, it is the FBI’s expectation that the law enforcement agency identify the applicable prosecuting agency, or agencies, for inclusion in this agreement.

equipment/technology and any associated software, operating manuals, or related documentation (including its technical/engineering description(s) and capabilities)

in any news or press releases, interviews, or direct or indirect statements to the media.

wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (including its technical/engineering description(s) and capabilities)

UPDATE: June 18, 2015 – It turns out that the Minnesota BCA accidentally released the unredacted NDA. And I thought that someone there had come to their senses.

 

Apr 132015
 

In a March 26, 2015, response to my public records request, the Ventura County Sheriff’s Office provided a heavily-redacted copy of a non-disclosure agreement with the FBI dated May 29, 2012. Based on the number of pages, the non-disclosure agreement appears similar to non-disclosure agreements between the FBI and the Minnesota Bureau of Criminal Apprehension and between the FBI and the Erie County Sheriff.

The non-disclosure agreement refers to “wireless collection equipment/technology manufactured by Harris Corporation,” which indicates that the equipment is likely a StingRay.

In a followup response to my public records request, dated March 27, 2015, the Ventura County Sheriff’s Office provided four heavily-redacted documents from Harris Corporation:

Apr 092015
 

In a March 19, 2015, response to my public records request, the Los Angeles Police Department responded, “To the extent that any such records may exist…they would constitute official information.” The letter goes on to state that all requested documents are exempt under California Government Code section 6254(k) and section 6255 without indicating whether such records exist.

However, a little research shows that on August 2, 2005, the Los Angeles City Council approved the purchase of a cell phone tracking system from Digital Receiver Technology for an amount not to exceed $260,000. Background material for the agenda item stated, “Most vendors only offered a product that could track phones issued by one or two cellular service providers. Conversely, DRT’s equipment can track and monitor all cellular phone traffic, making it the most advanced product on the market.” Digital Receiver Technology was purchased by Boeing in December 2008.

On April 29, 2010, the Chief of Police wrote a memo to the Police Board of Commissioners to approve a donation of $347,050 from the Los Angeles Police Foundation for a Harris StingRay II system, three high-power Harpoon amplifiers, a laptop, an Amberjack antenna and training. On July 6, 2010, the Los Angeles City Council formally accepted the donation.

Media coverage:

Apr 082015
 

In an emailed response to public records request, the San Bernardino County Sheriff’s Office released a lightly-redacted copy of its non-disclosure disagreement with the FBI. The document is dated December 7, 2012, and uses the same template of the NDA between the FBI and the Erie County Sheriff that was released by the ACLU on April 7, 2015.

The NDA includes these references to public records requests:

7. The San Bernardino Sheriff’s Department shall not, in any civil or criminal proceeding, use or provide any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (including its technical/engineering description(s) and capabilities) beyond the evidentiary results obtained through the use of the equipment/technology including, but not limited to, during pre-trial matters, in search warrants and related affidavits, in discovery, in response to court ordered disclosure, in other affidavits, in grand jury hearings, in the State’s case-in-chief, rebuttal, or on appeal, or in testimony in any phase of civil or criminal trial, without the prior written approval of the FBI. If the San Bernardino Sheriff’s Department learns that a District Attorney, prosecutor, or a court is considering or intends to use or provide any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (including its technical/engineering description(s) and capabilities) beyond the evidentiary results obtained through the use of the equipment/technology in a manner that will cause law enforcement sensitive information relating to the technology to be made known to the public, the San Bernardino Sheriff’s Department will immediately notify the FBI in order to allow sufficient time for the FBI to intervene to protect the equipment/technology and information from disclosure and potential compromise.

8. In addition, the San Bernardino Sheriff’s Department will, at the request of the FBI, seek dismissal of the case in lieu of using or providing, or allowing others to use or provide, any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (beyond the evidentiary results obtained through the use of the equipment/technology), if using or providing such information would potentially or actually compromise the equipment/technology. This point supposes that the agency has some control or influence over the prosecutorial process. Where such is not the case, or is limited so as to be inconsequential, it is the FBI’s expectation that the law enforcement agency identify the applicable prosecuting agency, or agencies, for inclusion in this agreement.

Public records request acknowledgement from March 16, 2015

Public records request acknowledgement from March 30, 2015

Media coverage:
Law enforcement officials: Cell phone disclosures would hurt investigations – The Desert Sun, Feb. 15, 2014

Apr 072015
 

The source for this text is the non-disclosure agreement between the Erie County Sheriff’s Office and the FBI obtained by the ACLU.

U.S. Department of Justice

Federal Bureau of Investigation

June 29, 2012

Scott R. Patronik
Chief
Erie County Sheriff’s Office
10 Delaware Avenue
Buffalo, NY 14202

Re: Acquisition of Wireless Collection Equipment/Technology and Non-Disclosure Obligations

LAW ENFORCEMENT SENSITIVE (LES): The information in this document is the property of the Federal Bureau of Investigation (FBI) and may be distributed within the federal government (and its contractors), U.S. intelligence, law enforcement, public safety or protection officials and individuals with a need to know. Distribution beyond these entities without FBI Operational Technology Division authorization is prohibited. Precautions should be taken to ensure this information is stored and/or destroyed in a manner that precludes unauthorized access. Information bearing the LES caveat may not be used in legal proceedings without first receiving authorization from the originating agency. Recipients are prohibited from subsequently posting the information marked LES on a website on an unclassified network.

Dear Scott R. Patronik:

We have been advised by Harris Corporation of the Erie County Sheriff’s Office’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.

As you are aware, law enforcement agencies increasingly rely on wireless collection equipment/technology to conduct lawfully-authorized electronic surveillance. Disclosing the existence of and the capabilities provided by such equipment/technology to the public would reveal sensitive technological capabilities possessed by the law enforcement community and may allow individuals who are the subject of investigation wherein this equipment/technology is used to employ countermeasures to avoid detection by law enforcement. This would not only potentially endanger the lives and physical safety of law enforcement officers and other individuals, but also adversely impact criminal and national security investigations. That is, disclosure of this information could result in the FBI’s inability to protect the public from terrorism and other criminal activity because, through public disclosures, this technology has been rendered essentially useless for future investigations. In order to ensure that such wireless collection equipment/technology continues to be available for use by the law enforcement community, the equipment/technology and any information related to its functions, operation, and use shall be protected from potential compromise by precluding disclosure of this information to the public in any manner including but not limited to: in press releases, in court documents, during judicial hearings, or during other public forums or proceedings. Accordingly, the Erie County Sheriff’s Office agrees to the following conditions in connection with its acquisition and use of the Harris Corporation equipment/technology:

1. By entering into this agreement, the Erie County Sheriff’s Office affirms that it has statutory authority to lawfully employ this technology and will do so only in support of public safety operations or criminal investigations.

2. The Erie County Sheriff’s Office assumes responsibility for operating the equipment/technology in accordance with federal law and regulation and accepts sale liability for any violations thereof, irrespective of the Federal Bureau of Investigation approval, if any, for the sale of the equipment/technology.

3. The Erie County Sheriff’s Office will ensure that operators of the equipment have met the operator training standards identified by the FBI and’ are certified to conduct operations.

4. The Erie County Sheriff’s Office will coordinate with the FBI in advance of its use of the wireless collection equipment/technology to ensure de-confliction of respective missions.

5. The Erie County Sheriff’s Office will not distribute, disseminate, or otherwise disclose any information concerning the wireless collection equipment/technology or any software, operating manuals, or related technical documentation (including its technical/engineering descriptions) and capabilities) to the public, including to any non-law enforcement individuals or agencies.

6. The Erie County Sheriff’s Office will not distribute, disseminate, or otherwise disclose any information concerning the wireless collection equipment/technology or any software) operating manuals, or related technical documentation (including its technical/engineering description(s) and capabilities) provided to it to any other law enforcement or government agency without the prior written approval of the FBI. Prior to any approved distribution, dissemination, or comparable disclosure of any information concerning the wireless collection equipment/technology or any software, manuals, or related technical documentation related to such equipment/technology, all materials shall be marked “Law Enforcement Sensitive, For Official Use Only – Not to be Disclosed Outside of the Erie County Sheriff’s Office.”

7. The Erie County Sheriff’s Office shall not, in any civil or criminal proceeding, use or provide any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (including its technical/engineering description(s) and capabilities) beyond the evidentiary results obtained through the use of the equipment/technology including, but not limited to, during pre-trial matters, in search warrants and related affidavits, in discovery, in response to court ordered disclosure, in other affidavits, in grand jury hearings, in the State’s case-in-chief, rebuttal, or on appeal, or in testimony in any phase of civil or criminal trial, without the prior written approval of the FBI. If the Erie County Sheriff’s Office learns that a District Attorney, prosecutor, or a court is considering or intends to use or provide any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (including its technical/engineering description(s) and capabilities) beyond the evidentiary results obtained through the use of the equipment/technology in a manner that will cause law enforcement sensitive information relating to the technology to be made known to the public, the Erie County Sheriff’s Office will immediately notify the FBI in order to allow sufficient time for the FBI to intervene to protect the equipment/technology and information from disclosure and potential compromise.

Notification shall be directed to the attention of:

Assistant Director
Operational Technology Division
Federal Bureau of Investigation
Engineering Research Facility
Building 27958A, Pod A
Quantico, Virginia 22135
(703) 985-6100

and

Unit Chief
Tracking Technology Unit
Operational Technology Division
Federal Bureau of Investigation
Engineering Research Facility
Building 27958A, Pod B
Quantico, Virginia 22135
(703) 985-6840

8. In addition, the Erie County Sheriff’s Office will, at the request of the FBI, seek dismissal of the case in lieu of using or providing, or allowing others to use or provide, any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (beyond the evidentiary results obtained through the use of the equipment/technology), if using or providing such information would potentially or actually compromise the equipment/technology. This point supposes that the agency has some control or influence over the prosecutorial process. Where such is not the case, or is limited so as to be inconsequential, it is the FBI’s expectation that the law enforcement agency identify the applicable prosecuting agency, or agencies, for inclusion in this agreement.

9. A copy of any court order in any proceeding in which the Erie County Sheriff’s Office is a Party directing disclosure of information concerning the Harris Corporation equipment/technology and any associated software, operating manuals, or related documentation (including its technical/engineering description(s) and capabilities) will immediately be provided to the FBI in order to allow sufficient time for the FBI to intervene to protect the equipment/technology and information from disclosure and potential compromise. Any such court orders shall be directed to the attention of:

Assistant Director
Operational Technology Division
Federal Bureau of investigation
Engineering Research Facility
Building 27958A, Pod A
Quantico, Virginia 22135
(703) 985-6100

and

Unit Chief
Tracking Technology Unit
Operational Technology Division
Federal Bureau of Investigation
Engineering Research Facility
Building 27958A, Pod B
Quantico, Virginia 22135
(703) 985-6840

10. The Erie County Sheriff’s Office will not publicize its acquisition or use of the Harris Corporation equipment/technology or any of the capabilities afforded by such equipment/technology to the public, other law enforcement agencies, or other government agencies, including, but not limited to, in any news or press releases, interviews, or direct or indirect statements to the media.

11. In the event that the Erie County Sheriff’s Office receives a request pursuant to the Freedom of Information Act (5 U.S.C. § 552) or an equivalent state or local law, the civil or criminal discovery process, or other judicial, legislative, or administrative process, to disclose information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (including its technical/engineering description(s) and capabilities), the Erie County Sheriff’s Office will immediately notify the FBI of any such request telephonically and in writing in order to allow sufficient time for the FBI to seek to prevent disclosure through appropriate channels. Notification shall be directed to the attention of:

Assistant Director
Operational Technology Division
Federal Bureau of Investigation
Engineering Research Facility
Building 27958A, Pod A
Quantico, Virginia 22135
(703) 985-6100

and

Unit Chief
Tracking Technology Unit
Operational Technology Division
Federal Bureau of Investigation
Engineering Research Facility
Building 27958A, Pod B
Quantico, Virginia 22135
(703) 985-6840

The Erie County Sheriff’s Office’s acceptance of the above conditions shall be evidenced by the signatures below of an authorized representative and wireless collection equipment operators of the Erie County Sheriff’s Office.

Sincerely,

Christopher M. Piehota
Special Agent in Charge
Buffalo Division
Federal Bureau of Investigation

Apr 072015
 

In a March 23, 2015, response to my public records request, the Delaware Division of State Police, noted that it does have a non-disclosure agreement with the FBI for cellular telephone monitoring and surveillance equipment.

The letter states,

Law Enforcement Sensitive: the information in the nondisclosure agreement is the property of the Federal Bureau of Investigation (FBI) and may be distributed within the Federal Government (and its contractors), U.S. intelligence, law enforcement, public safety of protection officials and individuals with a need to know. Distribution beyond these entities without FBI Operational Technology Division authorization is prohibited.

No information yet about when that agreement was signed or when the Delaware Division of State Police first acquired the equipment.

Apr 062015
 

Dustin Slaughter wrote for The Declaration on April 2, 2014 that the Pennsylvania State Police had StingRays from Harris Corporation since at least December 2013.

In a March 30, 2015, response to my public records request, the Pennsylvania State Police acknowledged that responsive records included “a four page correspondence dated August 18, 2011, from the FBI to PSP [Pennsylvania State Police] marked law enforcement sensitive and a two page agreement between Harris and PSP.” The response also states, “The PSP, upon receipt of a request(s) for cellular telephone surveillance records, confers with the FBI in contemplation of a response to the request(s) as the FBI provides guidance as to the legal dissemination of records pertaining to cellular telephone surveillance request(s)….PSP has had telephone contact with Harris Corporation. PSP notifies the FBI upon receipt of request(s) for information on cellular telephone surveillance records.”

This means that the Pennsylvania State Police have possessed Harris StingRays since 2011, two years earlier than the previously disclosed documents.

Pennsylvania State Police Stingray Surveillance Technology Contract – 2013

Apr 062015
 

On July 21, 2009, the Anchorage Assembly approved the purchase of a KingFish Dual-Mode system from Harris Wireless Products Group (Harris Corporation) for $109,600, plus $9,600 to train four officers of the Anchorage Police Department. The background material for the meeting included a June 24, 2009, memo (Old link – broken) detailing the capabilities of the KingFish system:

  • Identify location of an active cellular device to within 25 feet of actual location anywhere in the United States
  • Track the route of any active cellular device and record tracking information for evidentiary purposes
  • Mimic the functional appearance of an active cellular service tower
  • Interrupt service to active cellular connection
  • Prevent connection to identified cellular device (“No Service”)

During the meeting, Anchorage Police Chief Rob Huen added,

This is funded by a Homeland Security Grant. And it provides a capability of tracking suspect’s cell phone and additionally the ability to interrupt specific signals. For instance if somebody had an IED device and we had information regarding that. The Alaska FBI has such a device. They have one of them with one operator. Unfortunately coordination and availability of that specific unit and operator have made share use almost impossible. Now this is….when you talk about the cooperative purchase of this. This is actually purchased off a GSA federal contract with a federal grant in lieu of going sole source here locally. So, before we utilize this thing, you have to remember, we have to get a warrant for the phone number. It’s very closely controlled. And so the warrant that is needed to access the phone number. Once we get that, then we use the device to locate the cell phone of a suspect. Once we locate it, we need to get another warrant to access where that phone’s located – say its located in a home or a car. So there’s strict protections on that. And one of the other things that the device is capable of doing and we are prohibited by federal law from doing is using it to eavesdrop on conversations. We cannot do that. Only the NSA and Homeland Security can do that.

For video of the meeting click here. Audio of Chief Huen’s remarks are available here.

On January 28, 2015, I filed a public records request for a copy of the non-disclosure agreement between the Anchorage Police Department and the FBI. The request was acknowledged in a letter dated March 18, 2015, but no response has been received yet.