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Secrecy, surveillance and the Baltimore police

Our criminal justice system is not supposed to be built on secrecy. Police and prosecutors are supposed to be open and transparent about their methods, about the evidence they gather and how they gather it. Any exceptions to that general rule must be subject to strict oversight. But it is now clear that the Baltimore police department has been routinely violating that principle by using a high-tech, secret device to snoop on cell phone traffic — both that of suspected criminals and others — while seeking to conceal that information from judges, defense attorneys and the general public. The department, one of an unknown number that has received a so-called "stingray" device from the federal government, needs to either find a way to use the technology within a clearly defined set of checks and balances or abandon it.

Word that the city police department has and uses a stingray first emerged last fall when Circuit Court Judge Barry G. Williams threatened to hold a detective in contempt for his refusal to explain how police had tracked the defendant in a robbery case. The detective said that information was subject to a non-disclosure agreement between the police and the FBI, and ultimately prosecutors dropped the case rather than reveal police methods.

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That left open some major questions about what the technology's capabilities are, how often it is used and for what purposes. The answer, revealed by testimony Wednesday in an armed robbery and carjacking case, is that the city's stingray gives it the power to scoop up huge amounts of data and effectively control the phones of those it is targeting — including making them ring or boosting their signals to help locate them, even if they are turned off. And it is being used with staggering frequency — 4,700 times since 2007, which amounts to more than once a day. Whether it is reserved for use in solving violent crimes or more general purposes, we still don't know.

Because the federal government has sought to conceal the details of local law enforcement use of these devices, it is difficult to put Baltimore's program in any kind of context, but what little information is available suggests that the city is using its stingray far more often than other places do, or is at least admitting to much more. The Sun's Justin Fenton has been able to find information about the devices' use in a handful of other law enforcement agencies, none of which say they use it even a fraction as much as Baltimore does.

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The non-disclosure agreement, a five-page document signed in 2011 by then-Police Commissioner Frederick H. Bealefeld III and then-State's Attorney Gregg Bernstein, says that any public disclosure of the technology's use and capabilities could endanger the public by making criminals or terrorists aware of it and able to evade it. The document directs police or prosecutors to alert the FBI in time to allow it to intervene if a judge orders disclosure of any information about the technology, and it says prosecutors must drop cases rather than reveal such information. We know there have been at least some cases in which that has happened, or in which prosecutors have agreed to plea deals shortly after the subject of stingrays came up. At the very least, we need some sort of public accounting of the costs and benefits of the technology and the conditions the department has agreed to.

The other big question about this device is whether it puts the privacy of innocent people at risk. In their limited public discussion of the device, police have argued that all information the device scoops up about the phones of non-suspects is discarded. But in the post-Edward Snowden era, such assurances aren't enough without strict oversight, and given the restrictions on sharing information about the program even with judges, we have no reason to be confident that's happening.

If these are the only conditions under which law enforcement agencies can use the device without harming national security, they shouldn't use it.

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