Sunday, April 07, 2013

Hint at possible litigation over Fort Worth PD's acquisition of 'KingFish' fake-cell-tower device

On their March 5 agenda, the Fort Worth City Council considered an item in closed, executive session described only as "Legal issues related to acquisition of KingFish software from Harris Corporation." Harris Corporation is the company that makes surveillance devices with the trade name "Stingray" (see here and here) of which the KingFish system is one model in that line. These are fake cell towers that trick nearby phones into sending their signal through a police surveillance system instead of the nearest, privately operated network. The Obama Administration claims their use should not require a probable cause warrant. Privacy advocates and some courts have so far disagreed. This is yet another situation where technology has leaped far ahead of the legal framework that theoretically constrains it.

What might the Fort Worth City Council be discussing behind closed doors? The only clue comes from boilerplate language on the agenda covering several distinct items which declares that the council will "Seek the advice of its attorneys concerning the following pending or contemplated litigation or other matters that are exempt from public disclosure under Article X, Section 9 of the Texas State Bar Rules, as authorized by Section 551.071 of the Texas Government Code." Does that mean there is litigation pending or contemplated related to the acquisition of the Fort Worth PD's KingFish system, or a settlement offer under Government Code 551.071? If so I'd be interested to know more detail about who is suing who over what! Lately some other jurisdictions have gotten into hot water for failing to disclose to judges that they were using Stingray/KingFish-type technology when they'd only received orders approving traditional pen register/trap and trace devices. Has Fort Worth found itself in a similar situation? ¿Quien sabe?

A titillating tidbit: Perhaps there's a story there waiting to be ferreted out.

Fort Worth is the only non-federal agency we know of in Texas that owns one of these devices, but that's mainly because no one has comprehensively searched for more. Anecdotally, most non-federal agencies that own them appear to have purchased them with grants from the Departments of Justice or Homeland Security but tracking them all down would be a sizable open-records project. I could think of three potential ways to approach it: First, combing through federal grant reports to find agencies that specifically solicited money for the devices, Second, filing open records requests with various agencies for invoices paid to the Harris Corporation, which has more or less cornered the US law enforcement market selling this technology. Finally, at the Yale Law School conference I attended, Dr. Chris Soghoian said he'd had the most luck tracking these devices through their licensure at the Federal Communications Commission. (Federal FOIA's take longer than Texas public information requests, but that may be the most comprehensive route.) Then, once you'd identified owners of the technology, you'd want to check county courthouses in those jurisdictions (and the federal PACER system) for civil litigation and perhaps file a second round of open records requests related to policies, correspondence, etc,. about the device. That'd be a good project for a group with a smart intern or two to assign to it for a semester.

H/T: Chris Soghoian.

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