Police hid use of cell phone tracking device from judge because of NDA
arstechnica.com
arstechnica.com
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.
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.
Why, that's just unpossible in this great nation!
The choice of the word "unpossible" was precisely to mock the position that police lying would be surprising as unintelligent.
In common use, it's generally taken to mean exactly what the GP poster intended: a mock expression of surprise at a thing that is, in fact, assumed to be the case.
"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.
What do you even do when you have conflicting constitutional obligations...
Well, that's the premise behind many aspects of our justice system. No justice system at all accomplishes it better than any justice system at all, without other considerations, so it's clearly not the entire premise behind the whole of our justice system.
(I guess the more complicated answer is that there are lots of legal cases determining how to balance the two sides in such conflicts)
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.
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.
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.
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.
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.
Or do you think a search like that might warrant judicial oversight?
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.
Which is the entire fucking point of having judges review the claims of police and potential victims of crime. If they took it to a judge a judge could make a determination of whether the search the police of trying to conduct is reasonable based on prima facie evidence and the dangers to society posed both by the alleged crime and the search.
That's why the police can't knock down every door in the city to search for a stolen phone whereas for a nuclear bomb that request might be granted. Of course the 'owner' of the phone is going to consent to everyone elses house in the city being searched.
The particular method used by the cops in the article is indiscriminately broad, but with cooperation of the carriers the same can be accomplished without revealing the the location of any third party's handset. Likewise with even the slightest bit of cooperation from the carriers, the true owner of the handset can be identified by having the carrier verify whether the complainant is the person who holds the service contract for the phone. So clearly this process can be done without exposing any information other than GPS coordinates of the phone, and I don't see how that would require a warrant - it's information the carriers ought to be required to provide to the customer upon request, and them authenticating that information to law enforcement upon request by the customer doesn't infringe anyone's rights.
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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.
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.
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.
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.
Edit: Made my first question more specific