But the order was mostly conclusory, with light analysis and few factual findings. For example, it didn’t address when the Marshals deputized the officer. To claim the records exclusively as its own, the Marshals Service would have had to deputize the Sarasota officer before he created the records, and show that none of the records was created in connection with the Sarasota police’s official business. Maybe that case can be made, but it’s not evident from Williams’ order.
Barfield said he and the ACLU plan to appeal Williams’ order, to Florida’s Second District Court of Appeals, and that he anticipates filing next week.
Meanwhile, in a remarkable development, Barfield has made follow-up records requests with the Sarasota police, asking for emails containing certain keywords, such as “trap and trace,” a reference to surveillance devices and processes. He recently received a response that included a 2009 email between a Sarasota sergeant and the chief of another department that showed how far the government will go to keep secret the use of StingRay-type devices. Here’s an excerpt (emphasis added):
As you are aware for some time now, the US Marshalls [sic] and I believe [the Florida Department of Law Enforcement] have had equipment which enables law enforcement to ping a suspects cell phone and pin point his/her exact location in an effort to apprehend suspects involved in serious crimes. In the past, and at the request of the U.S. Marshalls, the investigative means utilized to locate the suspect have not been revealed so that we may continue to utilize this technology without the knowledge of the criminal element. In reports or depositions we simply refer to the assistance as “received information from a confidential source regarding the location of the suspect.” To date this has not been challenged.
The email, which was reported late Thursday by the Sarasota Herald-Tribune and Wired.com, in addition to the ACLU, goes on to say that “it is unnecessary to provide investigative means to anyone outside of law enforcement, especially in a public document.” If this practice remains in effect and unchallenged, it will be interesting to see how Florida judges—who might understand “confidential sources” to refer to people, not machines—will handle what on the surface seems, at the very least, deceptive. The Marshals Service did not immediately respond to a request for comment.
The problem of nondisclosure agreements
The secrecy surrounding StingRays isn’t just about Sarasota, or the Marshals. USA Today reported June 13 that Harris Corp. has been referring questions about particular uses of StingRay devices to individual police departments, which have in turn sometimes refused to release information because they say they signed a nondisclosure agreement with Harris when purchasing the devices.
The few publicly available agreements vary slightly, but in general they prohibit the disclosure of information about the use of certain Harris products in police operations and investigations, including any results derived from those uses that would constitute a “release of technical data.”
That’s problematic because courts in Florida and elsewhere generally treat nondisclosure agreements between government and private entities as irrelevant under public records law—unless, say, the agreement does nothing more than make confidential the type of information already exempt under the law. The policy rationale is prophylactic: To honor broad nondisclosure agreements would invite government agencies to create such agreements pro forma just to make confidential more information than not. That would offend basic principles underlying public records laws.
Notably, a nondisclosure agreement between Harris and the Florida Department of Law Enforcement—the state police—says it must be interpreted to comply with Florida law. But, according to the Tallahassee Democrat, which has been pushing this story as hard as any paper here, it also says if a court orders the FDLE to disclose information covered by the agreement, “the agency shall use its best effort to make such disclosures in a manner that provides maximum protection.” That’s troublesome not only for the reasons above but also because it conflicts with numerous Florida judicial commands that the public records law must be liberally construed.
For its part, the FDLE has said its agreement with Harris does not affect how the agency handles information about StingRay-type devices—because it has a superseding nondisclosure agreement with the FBI. According to that March 30 report in the Tallahassee Democrat, that arrangement requires the FDLE not to divulge “any of the investigative strategies, tactics or technical aspects of the technology.” But it’s unclear how that agreement actually affects the FDLE’s handling of surveillance information.