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 182015
 

In a letter dated June 8, 2015, the FBI responded to my request for a copy of the April 6, 2010, agreement between the FBI an Harris Corporation. This April 6, 2010, agreement is referenced in the approval of law enforcement agency’s non-disclosure agreements that are required before the law enforcement agency can purchase a cell site simulator such as a StingRay, KingFish, or HailStorm from Harris Corporation.

The letter from the FBI states,

Please be advised that upon reviewing the substantive nature of your request, we can neither confirm nor deny the existence of records responsive to your request pursuant to FOIA exemption (b) (7) (E) [5 U.S.C.§552 (b)(7)(E)]. The mere acknowledgment of whether or not the FBI has any such records in and of itself would disclose techniques, procedures, and/or guidelines that could reasonably be expected to risk of circumvention of the law. Thus, the FBI neither confirms nor denies the existence of any records.

However, although the FBI will neither confirm nor deny the existence of the April 6, 2010, agreement, it is referenced in letters from the FBI to Harris Corporation dated June 14, 2012 and February 13, 2013. This refusal to confirm or deny the existence of a document or specific information is known as a Glomar response, named for the Central Intelligence Agency’s response to a FOIA request about its Global Marine front company and its attempt to salvage a Soviet submarine. A portion of the text from both letters states,

The Federal Bureau of Investigation (FBI) has an approved non-disclosure agreement (NDA) in place with the captioned law enforcement agency. In accordance with the cited restricted software agreement and the April 6, 2010 agreement between the FBI and the Harris Corporation, your notification to the FBI of the agency’s intent to purchase, and our execution of the NDA, meets the FBI’s advance coordination requirement. Therefore, the Harris Corporation is permitted to sell the state-and-local version of the Stingray product with the restricted software to the…

May 262015
 

In response to a January 28, 2015, public records request and after I sent $1.14 to cover the cost of copies, the Phoenix Police Department sent a copy of its February 11, 2013, non-disclosure agreement with the Federal Bureau of Investigation.

With other non-disclosure agreements from the Minnesota Bureau of Criminal Apprehension, Erie County Sheriff’s Office, San Bernardino County Sheriff’s Office, Baltimore Police Department, and Ventura County Sheriffs Office, we can readily determine what text was redacted from the NDA. Nearly all of the redactions are references to hiding information about the StingRay from the judicial system.

From the bottom of the first page, the words “to employ countermeasures” were redacted from the sentence “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.”

Near the top of the third page of the NDA, the words “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,” were redacted from the sentence “The Phoenix Police 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.”

At the bottom of the third page, the words “seek dismissal of the case in” were redacted from the sentence “In addition, the Phoenix Police 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.”

Later in the same paragraph, the words “control or influence over the prosecutorial process” were redacted from the sentence “This point supposes that the agency has some control or influence over the prosecutorial process.”

Also in the same paragraph, the words “prosecuting agency, or agencies” were redacted from the sentence “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.”

At the bottom of the fourth page, the words “the civil or criminal discovery process” were redacted from the sentence “In the event that the Phoenix Police Department 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.”

Other less interesting redactions included the names of people in the Phoenix Police Department, the name of the Assistant Director of the FBI’s Operation Technology Division (Amy Hess), and the phone numbers for the Assistant Director of the FBI’s Operation Technology Division and the Unit Chief of the Tracking Technology Unit.

May 192015
 

On May 19, 2015, the Tacoma Police Department released a February 13, 2013, letter from the FBI to Harris Corporation permitting it “to sell the  state-and-local version of the Stingray product with the restricted [“Landshark”] software to the Tacoma Police Department.”

The complete text of the letter:

Attention: Patricia Sciandra

Re: Contract J-FBI-09-211 “Landshark” Restricted Software Request Approval – Tacoma Police Department

Dear Ms. Sciandra:

The Federal Bureau of Investigation (FBI) has an approved non-disclosure agreement (NDA) in place with the captioned law enforcement agency. In accordance with the cited restricted software agreement and the April 6, 2010 agreement between the FBI and the Harris Corporation, your notification to the FBI of the agency’s intent to purchase, and our execution of the NDA, meets the FBI’s advance coordination requirement. Therefore, the Harris Corporation is permitted to sell the state-and-local version of the Stingray product with the restricted software to the Tacoma Police Department.

W. L. Scott Bean, III
Chief, Technical Surveillance Section
Operational Technology Division

Apr 082015
 

In a March 30, 2015, response to my public records request, the Fresno County Sheriff’s Office claims that requested records are exempt from disclosure – without actually making a determination that the records actually exist. With respect to a non-disclosure agreement between the FBI and the Fresno County Sheriff’s Office, the letter states:

Pursuant to California Government Code 6254(f) ” … Records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice …. ,” are exempt from disclosure, therefore this part of the request is denied.

 Based on the response, it is all but certain that the Fresno County Sheriff’s Office has a cell site simulator. An appeal has been filed to obtain the non-disclosure agreement and determine what type of cell site simulator it possesses.

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