By Jennifer Portman
Democrat senior writer
The Florida Department of L aw Enforcement does in fact have a non-disclosure agreement with the maker of its cell phone tracking equipment that prohibits the agency from disc losing any information about the devices to the government or the public without a court order or written consent by the company.
In a Tallahassee Democrat report published two weeks ago about concerns by civil liberties advocate’s surrounding the Tallahassee Police Department’s use of so-called “Stingray” units — portable devices that simulate cellphone towers and allow police to track phones within a matter of feet — FDLE Commissioner Gerald Bailey said h is agency had a non-disclosure agreement with the FBI to not reveal information about the technology, but did not have one with Harris Corp, the Melbourne- based manufacturer of the equipment. TPD uses the company’s equipment, purchased by FDLE, under as part of a cooperative task force.
Last week, however, Bailey contacted the Democrat and said a non-disclosure agreement between FDLE and Harris that he was not aware of had been located by an attorney in the agency’s Tampa field office.The agreement was signed in June 2010 by a Tallahassee-office FDLE special agent in charge and a statewide technical operations unit investigator, both of whom no longer work f or the agency, along with a Harris senior contracts administrator.
Bailey said the agreement should have crossed his desk.
“At minimum, it should have gone through the legal office” in Tallahassee, Bailey said. “We were probably not as specific as we should have been about who could sign an agreement like this.”
The discovery of the agreement with Harris, however, does not change the way the agency handles information about the technology, Bailey said. He said FDLE’s agreement with the FBI to not divulge any o f the investigative strategies, tactics or technical aspects of the technology trumps the agreement with Harris.
“It doesn’t change anything,” he said.
Bailey said he would have signed the Harris agreement, but would have insisted it include a statement that the agency would abide by state public records laws. Such non-disclosure agreements with Harris have become a point of contention elsewhere in the country. The American Civil Liberties Union in Arizona is suing the city of Tucson on behalf of a freelance journalist w ho filed a public-records request seeking information from i ts police department about its use of stingray equipment.
As part of his request, the reporter received a non-disclosure agreement similar to the one signed by FDLE, along with emails from a police department official asking Harris to determine what information should be redacted from the records request. The agreement with the company said t hat if the city should receive a records request, it would notify Harris and allow it to challenge the request in court — and that t he city would assist the company in any such challenge.
“ (The Tucson Police Department) and the city of Tucson have allowed Harris Corporation to dictate the city of Tucson’s and TPD’s compliance with Arizona public-records l aw in regards to products and services purchased from Harris Corporation,” the lawsuits aid.
The non-disclosure agreement signed by FDLE with Harris, which was signed a day before Tucson signed its agreement with the company, does not contain the section specifically addressing public-records requests. But it is still broad in its scope, said Nate Wessler, a lawyer with the ACLU’s Speech, Privacy and Technology Project.
The agreement, which was provided to the Democrat by FDLE, prohibits the disclosure of any information about the use of 18 protected company products — all but four of which w ere redacted citing state records law exemptions — including operations, missions and investigative results that would be deemed a “release of technical data.”
The six-section agreement reads in part: “(The) agency shall not discuss, publish, rel ease or disclose any information pertaining to the products covered under this NDA to any third party individual, corporation or other entity, including any affiliated and unaffiliated state, county, city, town or village or other governmental agency or entity without the prior written consent of Harris.”
T he agreement notes that it should be governed in accordance to Florida law, but also says that in the event of a court ordered disclosure of information “the agency shall use its b est effort to make such disclosures in a manner that provides maximum protection” and FDLE “shall promptly notify Harris upon receipt of such order or mandate.”
FDLE officials said the agency has not received a court order to provide information t oany court.
“But if we do, we would follow the order of the court,” spokeswoman Gretl Plessinger said in an email response to questions.
Wessler said the ACLU is not planning to “jump into suing” FDLE now, but stressed that under Florida law the agency “can’t contract away their obligation to abide by public records law.” He sent a letter to FDLE last week challenging as inadequate the agency’s response to a public-records request he filed earlier this month seeking information on its cell tracking equipment.
FDLE officials say they are complying with the law and the Harris agreement has had no impact on the way they disclose information about the technology, which is shared with law enforcement agencies around the state and is a vital tool in finding abducted children and dangerous felons.
“The Harris NDA asks us to d o what we already do, protect our investigative techniques and sources,” Plessinger wrote. “Even if there had been no NDA, we would not release our investigative techniques so we can continue to utilize these tools to protect the public.”