How to use an NDA to track phones without a warrant

Florida cops have worked out a natty way to get around needing a pesky court order to track a user’s phone – they have been claiming that the manufacturer’s NDA forbids them from getting one.

In Florida everyone knows that a manufacturer’s NDA trumps the US constitution and that has allowed coppers to use their “stingray” mobile tracking gadget 200 times without ever telling a judge.

Their reason is that the device manufacturer made them sign a non-disclosure agreement that they say prevented them from telling the courts.

It all came to light during an appeal over a 2008 sexual battery case in Tallahassee in which the suspect also stole the victim’s mobile. Using the stingray — which simulates a mobile phone tower in order to trick nearby mobile devices into connecting to it and revealing their location — police were able to track him to an apartment.

During the case, authorities revealed that they had used the equipment at least 200 additional times since 2010 without disclosing this to courts and obtaining a warrant.

According to Wired, Harris is the leading maker of stingrays in the US, and appears to have been loaning the devices to police departments throughout the state for product testing and promotional purposes. Police departments signed non-disclosure agreements with the vendor and used the agreement to avoid disclosing their use of the equipment to courts.

The government has claimed it doesn’t need to obtain a probable-cause warrant to use the devices because they don’t collect the content of phone calls and text messages but rather operate like pen-registers and trap-and-traces, collecting the equivalent of header information.

According to the appellate court judges, after a young woman reported on September 13, 2008 that she had been raped and that her purse, containing a mobile phone, had been stolen, police tracked the location of her phone about 24 hours later to the apartment of Thomas’ girlfriend.

Around 5 am, they knocked on the apartment door, but the suspect’s girlfriend refused to let them in without a warrant. Instead, they forced their way in, ordered her and Thomas to exit, and then searched the apartment. After they found the victim’s purse and mobile and arrested Thomas.

Authorities opted not to get a warrant either for the use of the Stingray or the search of the apartment, simply because they did not want to tell the judge what they were using to locate the suspect, a matter.

Judges are a little miffed too. When the government attorney tried to argue in court that the police had planned to obtain a warrant to enter the apartment, one of the judges pointed out that they had not done this on the other 200 times.