The FBI provided an Oklahoma City police department with use of a StingRay device and required the police department “to use additional and independent investigative means and methods” in order to ensure the information obtained by the surveillance device “would be admissible at trial,” according to a non-disclosure agreement obtained by Oklahoma Watch through a Freedom of Information request.
Following the FBI's controversial practice of signing NDAs with local law enforcement authorities that prohibit law enforcement from disclosing the use of StingRay surveillance devices, the Justice Department announced revised guidelines in September 2014. The guidelines require federal, state, and local law enforcement agencies to obtain a search warrant supported by probable cause prior to using the surveillance devices.
The unclassified document was signed by James E. Finch, special agent in charge of the FBI's Oklahoma City Division, in August 2014, a year before the DoJ announced new guidelines. The document seems to directly instruct the police department to engage in parallel construction, the use of normal investigative techniques to recreate information gained through surveillance technologies.
This version of the StingRay NDA version “goes the extra mile in directing affirmative measures to mislead and hide the investigative trail,” said Nathan Freed Wessler, staff attorney with the ACLU's Speech, Privacy, and Technology Project, in speaking with SCMagazine.com.
“Information obtained through use of the equipment is FOR LEAD PURPOSES ONLY, and may not be used as primary evidence in any affidavits, hearings or trials,” the unclassified document stated. “This equipment provides general location information about a cellular device, and your agency understands it is required to use additional and independent investigative means and methods, such as historical cellular analysis, that would be admissible at trial to corroborate information concerning the location of the target obtained through use of this equipment.”
Concerns over the use of parallel construction are especially heightened, as Congress considers proposed amendments to Rule 41, which would grant broad powers to law enforcement agencies to access electronic information and allow judges to issue warrants outside the court's district.
“A central concern is lack of candor to judges,” said Wessler. “It is absolutely essential that judges understand what they are being asked to approve in issuing a warrant. Otherwise, they are unable to fulfill their Constitutional duties.”
Justice Department Deputy Attorney General Sally Quillian Yates last fall told SCMagazine.com via email that the DoJ expects "the FBI to be revising those agreements with the state and locals."