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FBI joins Erie County Sheriff in opposing bid to release information on cell phone tracking

The FBI has joined the Erie County Sheriff’s Office in opposing a bid by the New York Civil Liberties Union for a court order directing the Sheriff’s Office to release information on its use of cellphone tracking devices to monitor users.

The NYCLU filed the legal action in November in State Supreme Court after the Sheriff’s Office denied its request under the Freedom of Information Law for records on the acquisition and use of the mobile devices known as Stingrays.

The NYCLU says the surveillance devices were developed for military use and are about the size of a briefcase. It says the devices mimic cellphone towers and surreptitiously prompt cellphones in their vicinity to deliver data to them.

In opposing the NYCLU request, the Sheriff’s Office said the information sought is exempt from disclosure under the Freedom of Information Law because it would improperly reveal criminal investigative techniques.

“Although the request for the protection information at issue here was directed to a local law enforcement agency, the implications of the request have national and potentially international significance,” the Sheriff’s Office said.

The FBI contends that disclosing the information “would allow criminal defendants, criminal enterprises, or foreign powers, should they gain access to the items, to determine law enforcement’s techniques, procedures, limitations and capabilities in this area.”

“This knowledge could easily lead to the development and deployment of countermeasures to FBI tools and investigative techniques by subjects of investigations and completely disarm law enforcement’s ability to obtain technology-based surveillance data in criminal investigations,” the FBI said in an affidavit filed by Supervisory Special Agent Bradley S. Morrison, chief of the FBI’s Tracking Technology Unit in Quantico, Va.

“This, in turn, could completely prevent the successful prosecution of criminal cases involving kidnappings, murder, terrorism and criminal conspiracies where cellular location is frequently used.”

The FBI also says the disclosure of the information would violate federal statutes and a non-disclosure agreement between the FBI and Sheriff’s Office designed to protect cell site technology.

Sheriff Timothy B. Howard has acknowledged that specially trained deputies have been using Stingrays since 2008. He told Erie County lawmakers at a committee hearing in May that it was up to the courts and not legislators to provide oversight on how the devices are used.

Howard said the devices are used only for tracking a person’s movements, not for snooping into the content of phone communications. He also said use of the devices in criminal investigations is always part of a judicial review.

The NYCLU says the cellphone tracking devices raise “significant privacy concerns” under the Fourth Amendment to the U.S. Constitution and provisions of the State Constitution, both of which prohibit unreasonable searches and seizures.

Justice Patrick H. NeMoyer will hold a hearing on the request next Wednesday.