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Just-Released Records Show Lack of Judicial Oversight of Sheriff’s Cell Phone Spying

Buffalo, NY’s WGRZ reports newly released records suggest the Erie County Sheriff’s Office obtained little judicial oversight for its controversial cell phone spying program. This information contradicts public statements made by Sheriff Tim Howard, who reported that deputies received court orders prior to using the surveillance devices, commonly referred to as Stingray technology, in criminal matters.

A judge required that the records be released to the New York Civil Liberties Union. The Sheriff’s Office tried for months to block the documents’ release.

Barry Covert’s take on the controversy

A noted criminal defense attorney and senior partner at the Buffalo-based law firm Lipsitz Green Scime Cambria and a WGRZ 2 On Your Side legal analyst, Barry Covert was asked to comment on this information.

He told WGRZ he found the developments disturbing.

"No one wants to shut the program down, not even us defense lawyers," Mr. Covert said. "All we want, though, is for the sheriff to comply with the U.S. and state constitutions and New York State laws and go before a judge—unless there's not enough time—and get a judicial warrant."

Released documents show only one court order

WGRZ reports that, in a memo titled "Cellular Tracking Procedures," Chief Scott Patronik advises deputies using the Stingray equipment to "describe the legal authority for tracking the cellular phone" in complaint logs, which were among the newly released documents. In spite of these instructions, only one complaint log says law enforcement sought a court order from a judge. In this case, the court order was a pen register. In other complaint logs, no judicial authority is cited.

Even in the instance that had judicial oversight, law enforcement did not get a full search warrant. Rulings from the Supreme Court and other judges suggest a pen register court order is not enough to use Stingray and that a full search warrant is necessary.

Non-disclosure agreement details decisions on secrecy

In addition to the complaint logs and the memo about cellular tracking procedures, the Sheriff's Office was also required to release Stingray purchase records; a letter from Harris Corporation, the manufacturer of the devices; and non-disclosure agreement between the Erie County Sheriff's Office and the FBI. The non-disclosure agreement is of particular concern to civil liberties groups, WGRZ says. The document requires the Sheriff's Office to keep the program, even related court proceedings, completely secret until it first notifies the FBI. The agreement prioritizes getting criminal charges dismissed rather than revealing potentially compromising information about the technology.

About Barry Covert

Mr. Covert, a member of Lipsitz Green’s Criminal Defense Trials and Appeals Practice Area, is known for his aggressive representation of clients in the areas of New York State and federal criminal trials and appeals; constitutional law, including First Amendment, civil rights actions, and federal False Claims Act; defending against allegations of scientific misconduct and fraud, research misconduct and fraud, plagiarism, and fabrication of evidence; and professional licensing defense.

Mr. Covert provided more in-depth analysis of the Sheriff’s Office’s use of cell phone spying in this earlier WGRZ interview.

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