Within the last year, there have been examples of prosecutors who have dropped cases—even after receiving guilty pleas—rather than offering disclosures on stingray use. The statement says that this provision has never been invoked by the FBI.
“Shall not… use or provide any information”
In April 2015, the New York Civil Liberties Union won a lawsuit filed against the Erie County Sheriff’s Office (ECSO) in Northwestern New York, where that agency was compelled to produce its NDA with the FBI, the first time one had been released in fully unredacted form. Similar agreements are believed to exist between the FBI and many other law enforcement agencies nationwide.
The newly revealed sections state:
7) The Erie County Sheriff’s Office shall not, in any civil or criminal proceeding, use or provide any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (including its technical/engineering description(s) and capabilities) beyond the evidentiary results obtained through the use of the equipment/technology including, but not limited to, during pre-trial matters, in search warrants, and related affidavits, in discovery, in response to court ordered disclosure, in other affidavits, in grand jury hearings, in the State’s case-in-chief, rebuttal, or on appeal, or in testimony in any phase of civil or criminal trial, without the prior written approval of the FBI.
8) In addition, the Erie County Sheriff’s Office will, at the request of the FBI, seek dismissal of the case in lieu of using or providing, or allowing others to use or provide, any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (beyond the evidentiary results obtained through the use of the equipment/technology), if using or providing such information would potentially or actually compromise the equipment/technology. This point supposes that the agency has some control or influence over the prosecutorial process. Where such is not the case, or is limited so as to be inconsequential, it is the FBI’s expectation that the law enforcement agency identify the applicable prosecuting agency, or agencies, for inclusion in this agreement.
“The FBI’s concern is with protecting the law enforcement sensitive details regarding the tradecraft and capabilities of the device,” Christopher Allen, an FBI spokesman, said in the statement provided both to the Post and to Ars.