A former Maryland high court judge said an agreement between the federal government and local authorities to withhold disclosure of a powerful cellphone surveillance device is "just wrong."
Retired Court of Appeals Judge Joseph F. Murphy Jr. said Wednesday that he has no problem with law enforcement coordinating with federal authorities on the use of cell site simulators — also known as "stingrays" — or not wanting to publicize the technology.
But he said police are supposed to be truthful when obtaining warrants. The Baltimore Sun has reported that police and prosecutors signed a nondisclosure agreement with the FBI in which they agreed not to discuss the device, with prosecutors even agreeing to drop cases rather than disclose information about them.
Murphy said that was "a bridge too far."
"The idea that you're supposed to be hiding something from a judge is just wrong," Murphy said.
Anne T. McKenna, an attorney who works with Murphy at the Internet and Privacy Law Group at the firm of Silverman, Thompson, Slutkin and White, added that "nondisclosure of something that clearly implicates the Fourth Amendment is astonishing to me."
The extent of the Baltimore Police Department's use of the stingray device was largely secret until last week, when a detective testified in court that the agency has used it 4,300 times since 2007 and provided a copy of the nondisclosure agreement.
At least 50 police agencies in 20 states have been revealed to have the devices, according to the American Civil Liberties Union. Those agencies include several Maryland police departments — Anne Arundel, Baltimore County, Montgomery County, Prince George's County and state police.
"There's nothing wrong with the use of the technology," Murphy said. "It's just that when you use the kind of technology that involves intrusion into a constitutionally protected area, the decision to do that is for the judge, and not for police or prosecutors."
This week, Washington state lawmakers unanimously passed a bill requiring police to obtain a search warrant before using the stingray. The Tacoma News Tribune reported last summer that Tacoma police had used a cell site simulator for six years without county judges knowing the department had the device.
Murphy questioned the need for secrecy in the first place.
"It strikes me as a little silly to think they would be coordinating with the FBI under the authority of this contract to locate a stolen cellphone in Northeast Baltimore," Murphy said.
"Merely suggesting that the disclosure of this is going to [allow] criminals to employ countermeasures to endanger the investigations, to somehow create a problem of national security, is a little silly when you can go on the website of the manufacturer and find out the capability of this stuff," he added.
Authorities say police in Maryland have obtained court orders to use the device. But because of the secrecy attached to the technology, defense attorneys and privacy advocates say judges were uninformed about what they were signing. The court orders were for "pen registers," a procedure generally understood to involve obtaining phone log information from a cellular provider. The text of the order, however, specifically notes that the order will allow real-time GPS tracking.
"They're not using the technology as historically used for a pen register," said McKenna, of the Internet and Privacy Law Group. "It doesn't pass the smell test in any way."
Other critics describe the phone as a "dragnet" that indiscriminately collects phone signals that can jam phone service in areas where police use it.
Retired Prince George's County Circuit Judge Steven I. Platt said he wasn't personally troubled by the technology's capabilities, but said rules need to be clear.
"Google knows where I am all the time," he said. "If I'm not alarmed by Google knowing where I am, I'm not alarmed by law enforcement [knowing]. Some people don't feel that way, and I understand that. In cases where somebody's liberties are at stake, the rules ought to be known and ought to be clear. And the results of not complying with those rules should be clear."
Platt said cases have been coming to the court in a piecemeal fashion and need to be looked at more comprehensively.