Police hid use of cell phone tracking device from judge because of NDA

http://arstechnica.com/tech-policy/2014/03/police-hid-use-of-cell-phone-tracking-device-from-judge-because-of-nda/

by rajbala • 12 years ago

125 42 12 years ago

csense• 12 years ago

The police department has Constitutional obligation to follow the Fourth and Fifth Amendments. Don't these obligations trump the provisions of any private contract?

sliverstorm• 12 years ago

If companies are people, isn't disclosing private information belonging to that company is a violation of a person's privacy? Doesn't that mean the gov't also has a constitutional obligation to not break the privacy of companies?

What do you even do when you have conflicting constitutional obligations...

skywhopper2• 12 years ago

You err on the side of protecting the innocent and allowing the guilty to go free. That's the entire premise behind our justice system--that it's better to allow criminals to get away with crimes than to punish innocent people.

maxerickson• 12 years ago

The straightforward resolution is that the government shouldn't enter into agreements that create the conflict.

(I guess the more complicated answer is that there are lots of legal cases determining how to balance the two sides in such conflicts)

nness• 12 years ago

Interesting thought, but you've completely misunderstood the specifics of corporate personhood. Personal privacy is not reserved for incorporated entities at all.

judk2• 12 years ago

Then you ask the judge for a gag order so the secret info doesn't reach the public.

george88b• 12 years ago

No one wants to get sued, no matter how frivolous.

jerf• 12 years ago

The logically correct answer is that the police department should not have signed the contract due to a legal inability to keep up their end of the bargain. You can offer someone a contract in which they promise to pay you ten million dollars, but when they subsequently fail to pay up it isn't really a defense that they never had ten million dollars, nor any realistic expectation of having it. That doesn't mean they should just sign anyway, it means they should not sign. This is also the correct response to silverstorm's sibling post... the failure occurred at the signing, not in court. By then the police department had already lost.

The police department should be legally compelled to tell the judge about this, then they should be held in breach of contract. This will not happen, of course, and our trust in our institutions and our belief that our society is based on anything other than raw power will take another fully-rationally-justified blow.

rosser3• 12 years ago

If they don't, then the boilerplate verbiage that appears in pretty much every contract I've ever seen, which voids any provisions of said contract that are illegal or unenforceable without prejudice to any other terms of the contract, does.

That is to say: any contract which includes such a clause can't bind you to do something illegal, just because you signed it.

It's generally illegal to lie to a court, particularly when under oath.

judk2• 12 years ago

The oath doesn't change legal status, it just a psychology hack.

derekp7• 12 years ago

So here's the problem that I have with most of these types of cases, where police don't follow proper procedure to capture a suspect. Let's say they went through normal procedures -- get a sketch artist to make a possibly inaccurate caricature of the suspect, and use that to make an arrest, and have the victim ID the suspect. This has a good chance of convicting the wrong person. First, if the sketch is inaccurate, the victim may have that image in there mind afterwards, which would influence picking out the suspect from a lineup.

Now, using the alternative procedure, in which the police are tracking down the victim's stolen phone (I'm assuming with the victim's blessing), there is a much higher chance of getting the right suspect.

So, how do you argue with someone that the police should use inferior (but legal) evidence to put the (possibly wrong) person away, instead of using more accurate (but 4'th amendment violating) evidence to get the right person? Now in cases where proper procedure always gives superior evidence, then it is easier to argue for that (such as standards for collecting DNA evidence to avoid contamination). But in other cases, it is possible that unauthorized methods can lead police away from an innocent person and toward the guilty one.

RBerenguel• 12 years ago

There's a matter of borders. Where do we draw the line? Illegal wiretapping? Beating suspects? Blackmailing? Menaces?

mathattack2• 12 years ago

It's very tough, because it's easy to say after the fact if anyone has been harmed. There's also the concept of turning into a police state, which is bad, while you can argue away an individual wiretap.

My 2 cents... Beating suspects is 100% bad. So is blackmailing. They destroy trust in the system.

Wiretapping is touchier. If it reduces the amount of false convictions, is it worth giving up some aggregate civil liberty?

No black and white answer.

Osiris• 12 years ago

How it would it violate the 4th amendment to track the location of an individual's phone with their consent? If the location of the phone happens to be in another person's pocket, wouldn't that provide reasonable suspicion that a crime was committed, allowing the police to further investigate that individual?

I suppose the distinction is in how the police track the victim's phone.

DerpDerpDerp4• 12 years ago

I suppose the distinction is in how the police track the victim's phone.

If they're tracking it by scooping up all the cellphone traffic in an area, which they're alleged to have done here, then it triggers the privacy rights of the people who aren't involved and just happen to be in the area, and hence should be done with judicial oversight.

fleitz2• 12 years ago

If a phone is stolen in a mall do you think it's reasonable for police to setup checkpoints at all entrances and exits and body cavity search everyone who goes in and out with out judicial oversight based only on the assertions of the alleged victim?

Or do you think a search like that might warrant judicial oversight?

skywhopper2• 12 years ago

No, the police should just have filed for a search warrant to track the phone. They would have gotten it if your summary of the case is accurate.

If police are allowed to violate procedure and still get to prosecute, there's no incentive for them to ever follow proper procedure. The reason the Fourth Amendment exists is precisely because these lessons were already learned hundreds of years ago, but we seem to have forgotten that police who hold completely authority to determine what is and is not a reasonable search will inevitably abuse that power.

wtallis2• 12 years ago

If the rightful owner of the phone consented, I don't see how the police could need a warrant unless it was necessary to win the cooperation of the carrier.

6d0debc071• 12 years ago

So, how do you argue with someone that the police should use inferior (but legal) evidence to put the (possibly wrong) person away, instead of using more accurate (but 4'th amendment violating) evidence to get the right person?

-------------------

If the standard of the inferior evidence didn't exceed reasonable doubt, then the person shouldn't have been put away anyway. The evidence simply isn't strong enough. It might perhaps be strong enough to get a warrant for further information, but if we're arguing for the worst case then we'll assume it's not.

If the evidence is strong enough to place the person beyond a reasonable doubt, then the value of the extra information goes down dramatically.

There are situations where you just can't get sufficient evidence given the resources you can legally, ethically and practically use. At which point you have to choose: Do you lower your standard of evidence, weaken your liberties by allowing unethical or illegal practices, or let someone guilty go free?

Personally, I favour the latter option. But there are, at least, three different answers that someone might have - and if I had to argue with someone about police procedure then I'd be inclined to explore the options and the potential consequences of each.

forgotAgain• 12 years ago

No one is saying that the police should use inferior techniques. Framing your position in such a manner reduces it to a straw man.

What is being stated is that some techniques are so powerful that they require oversight. This is nothing new. This goes back to the origins of our system of law. The oversight is provided by requiring police to obtain a warrant.

pavanky• 12 years ago

"the road to hell is paved with good intentions"

I think this old proverb is appropriate here. What seems acceptable today can and will be used to persecute dissent. That is the nature of humans as we exist today.

coldtea• 12 years ago

Better: has been used already for decades. Phone tapping and GPS.

arca_vorago• 12 years ago

'Police "did not want to obtain a search warrant because they did not want to reveal information about the technology they used to track the cell phone signal,"'

"As two judges noted during the oral argument, as of 2010 the Tallahassee Police Department had used stingrays a staggering 200 times without ever disclosing their use to a judge to get a warrant."

I'm curious if the government plans to appeal, because if it goes to a higher court, I wouldn't be surprised if it was overturned. I have noticed a pattern where some middle level courts will actually, gasp, rule in favor of the Constitution, only to be overturned in a higher court (years later of course).

This is such a blatant violation of the fourth amendment that it is disgusting (much like many other Constitutional violations happening these days).

Also, please remember that according to Ruse Tice and an unnamed source of Sibel Edmonds, the SCOTUS itself is likely to be compromised via traditional intelligence tools (blackmail, corruption, etc).

This is a symptom of larger issues at hand in society.

avsbst• 12 years ago

So in a case like this assuming the defendant is able to suppress any information used against him with respect to his location. Does it even matter for his case? The police now know who he is and assuming DNA evidence, rape test kit evidence, etc. come back and implicate him won't he still be found guilty? Or is all of that suppressed because the police wouldn't have found him otherwise without violating the 4th amendment?

Edit: Made my first question more specific

wmf• 12 years ago

See http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree

leepowers• 12 years ago

....as of 2010 the Tallahassee Police Department had used stingrays a staggering 200 times without ever disclosing their use to a judge to get a warrant.

This is the heart of the problem with law enforcement surveillance at all levels (local, state, federal). In the U.S. we've always had independent judicial oversight for police entering and searching your home. There's absolutely no reason why a similar invasion (if not more severe), which can track your movements and conversations, should be held to a lesser standard.

Time and again law enforcement has sided with what's expedient. They should be erring on the side of caution when it comes to the fundamental rights of the citizens they've sworn to protect.

wwweston• 12 years ago

Time and again law enforcement has sided with what's expedient. They should be erring on the side of caution when it comes to the fundamental rights of the citizens they've sworn to protect.

Agreed. There seems to be a narrow view of which laws they're enforcing. I think it's arguable that when law enforcement fails to respect fundamental rights which are also part of the law they're ostensibly enforcing then they're failing at their job as much as if they were to observe a property crime in progress and take no action to catch the perps.

Of course, it's also arguable that most officers (and prosecutors) work inside a system which incentivizes that narrow view.

pmorici• 12 years ago

Pretty sure an NDA can't prevent an individual from testifying truthfully in a court in the US no matter what the NDA says. So essentially the Police just lied.

DerpDerpDerp4• 12 years ago

Police in the US lied to a court of law?

Why, that's just unpossible in this great nation!

EpicEng2• 12 years ago

If you're going to make a sweeping insult about all law enforcement in a given country at least try to use proper grammar when doing so. "Unpossible" is not a word.

gumby• 12 years ago

Metacomplaint:

The real title of this piece should be "Police used NDA as an excuse to hide use of cell phone tracking device from judge." As others have already commented, (e.g. pmorici) there is no way a civil agreement could prevent disclosure in a criminal matter.

It's no great surprise the police would want to do this.

What's disappointing is the reflexive journalistic cringe to be "fair" which in fact ends up being unfair. I'm not advocating froth-at-the-mouth partisanship a la Fox News or WorldNetDaily. But this headline unambiguously skews the story by taking the cops' word as they (mendaciously) uttered it.

chrismcb• 12 years ago

It sounds like they did some dirty underhanded things... But did they get in trouble for finding the thief of a phone, by tracking the victim's phone?

Police hid use of cell phone tracking device from judge because of NDA

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