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Do the Baltimore PD and the FBI have an agreement to break federal law?

On Wednesday, the Associated Press issued a blockbuster report on the use of high-tech surveillance techniques by local police departments -- Baltimore in particular -- and the degree to which the FBI is willing to sacrifice our constitutional rights in order to keep that surveillance secret.

The astonishing revelations occurred during a trial involving robbery and carjacking. Under defense questioning, a Baltimore police detective admitted he had intentionally refused to comply with a court subpoena because of an agreement between the department and the FBI.

According to his testimony, the Baltimore PD and the FBI have entered into a nondisclosure agreement to withhold information about a surveillance program involving cellphone tracking devices. One such device is the Stingray; another is an upgrade called the Hailstorm, which is used by the Baltimore PD.

The devices were developed for military use, and according to the AP, public records requests for information on the function and use of these result in only highly censored documents. It's not clear whether the devices can collect the content of phone calls and text messages or only their metadata logs.

The Baltimore police detective testified that the Hailstorm device can identify and capture information about all phones within a about a city-block radius. He denied that any content of conversations was collected.

Under the U.S. Constitution, you can't be deprived of life, liberty or property except through the due process of law. Traditional constitutional jurisprudence seems unquestionably to require police to reveal every material detail of their investigations so that criminal defendants can fully confront any evidence used against them.

Instead, the Baltimore PD and the FBI apparently agreed not to comply with court orders that might reveal secrets about the program. The detective explicitly testified that the agreement is currently in force and that it instructed him to withhold such evidence, even from judges and the state's attorney, and even when he has been ordered to produce it.

This has proved problematic for prosecutors. In several cases cited by the AP, prosecutors or judges have simply thrown out evidence obtained using the devices. Of course, it's much more problematic for the criminal defendants who may have been convicted based on Hailstorm evidence without ever even knowing about it.

Officials in New York also revealed some information about their Stingray program this week, but only after a court order. No information specific to Pennsylvania was released. The FBI declined to comment.

Source: Yahoo News, "Baltimore police often surveil cellphones amid US secrecy," Jack Gillum and Juliet Linderman, Associated Press, April 8, 2015

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