FBI Dirty Tricks Plague Court Battle Over StingRay Surveillance Records

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Daniel Rigmaiden Battles FBI over Harris StingRay
FBI uses a slew of dirty tricks in Daniel Rigmaiden’s Freedom of Information Act lawsuit seeking records on StingRay cell site simulators made by Harris Corp. In above photo, Rigmaiden leaves the vicinity of a photoshopped Harris Corporation van.

Is the FBI playing dirty ricks?

Since late 2011, I have been dealing with a slew of dirty tricks orchestrated by the Federal Bureau of Investigation (FBI) in relation to my Freedom of Information Act (FOIA) request seeking records on StingRay cell site simulators manufactured by Harris Corporation.

These dirty tricks include the FBI ignoring my FOIA request for more than 18 months, refusing to admit that records exist, withholding records to prevent customers from suing telecommunications carriers, charging me $555 for 37 CDs worth of records that would have fit on three CDs for $45 and deleting evidence from its public website that would have been helpful in my FOIA lawsuit.

I have been dealing with this FOIA request since 2011, but it stems from an event occurring in 2008.

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1. Daniel Rigmaiden’s FOIA Lawsuit for StingRay Records

On Aug. 3, 2008, the FBI used the StingRay and KingFish surveillance devices to locate my Verizon Wireless aircard inside my Santa Clara, Calif., apartment. I was under investigation by the Internal Revenue Service, United States Postal Inspectors and FBI for filing fraudulent tax returns using deceased identities and collecting the refunds. I was indicted, and later indicted again, for my participation in the scheme.

The StingRay and KingFish are cell site simulators manufactured by Harris Corporation out of Melbourne, Fla. A cell site simulator is a portable surveillance device used by law enforcement to mimic a cell tower. It forces all compatible cellular devices within signal range to disconnect from service provider cell towers and connect to a rogue network broadcast by the simulator. Once a device is connected, the operator of the simulator can use radio waves to identify, track and locate the device, among other surveillance features dependent on the simulator’s software. Cell site simulators are primarily used by law enforcement to locate criminal suspects, fugitives and missing persons.

Prior to my arrest and prosecution, law enforcement use of cell site simulators, or StingRays, was largely unknown. It was only after I represented myself in court, and pursued aggressive discovery, that the government admitted to using a cell site simulator in a specific investigation and explained how it worked.

For example, on Oct. 27, 2011, the FBI submitted a declaration in my criminal case admitting for the first time that identifying serial numbers are collected from innocent bystander cell phones whenever agents use a StingRay. This issue remains central to the privacy vs. security debate surrounding StingRays today.

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The declaration also explains how the FBI, at that time, considered StingRays to be pen registers, which do not require probable cause warrants for their use. Since then, the FBI has adopted a new position that it will obtain warrants to use cell site simulators unless “the technology is used in public places or other locations at which the government deems there is no reasonable expectation of privacy.”

As I fought to gather information on the StingRay during my criminal prosecution, I submitted a FOIA request to the government for all records on wireless device locators manufactured by Harris. A FOIA request allows members of the public to obtain any record of the government unless one of nine FOIA exemptions applies. These exemptions are listed under 5 U.S.C. § 552(b), et seq.

I submitted my FOIA request to the FBI on Oct. 10, 2011. Although agencies are required to address FOIA requests within 20 days, I initially received no response from the FBI. It was only after I filed my FOIA lawsuit, Rigmaiden v. FBI, et al., CV12-1605-PHX (D.Ariz), that the FBI decided to respond. The FBI’s response came via letter dated May 1, 2013 — more than 18 months after my initial FOIA request.

In what is known as a Glomar response, the FBI’s letter refused to even acknowledge the existence of the records, let alone turn them over. Finding the FBI’s position ridiculous, on July 23, 2013, I filed a motion asking the magistrate judge presiding over my lawsuit to order the FBI to turn over all requested records.

Attached to my motion were 881 pages of documents revealing public knowledge of Harris devices and prior FBI admissions that the agency uses the devices to locate cellphones. For example, the agency had already disclosed use of the Harris “Loggerhead” cell phone surveillance device in FOIA documents provided to the Electronic Frontier Foundation (EFF) in 2007.

After reviewing my filing, the FBI decided to change its position and admit that it had records relating to my FOIA request. It took 881 pages of documents to “remind” the FBI that it had already publicly disclosed its use of wireless device locators manufactured by Harris. In a motion to stay the proceedings filed on Sept. 30, 2013, the FBI stated the following:

“While the FBI previously had determined that it could neither confirm nor deny the existence of records that were responsive to Plaintiff’s request under the Freedom of Information Act (‘FOIA’), as it was considering how to respond to Plaintiff’s Motion for Partial Summary Judgment, the FBI reached a different determination. On September 25, 2013, the FBI sent Plaintiff a letter stating that it could now confirm the existence of records responsive to his request.”

The FBI would now process 22,982 pages of responsive records for possible disclosure. According to an FBI declaration, words such as Harris, StingRay, TriggerFish and WITT (the FBI’s Wireless Intercept and Tracking Team) would not be redacted, or blacked out, on the records produced by the FBI.

2. EPIC’s Parallel FOIA Lawsuit for StingRay Records

While I was litigating my FOIA lawsuit against the FBI, the Electronic Privacy Information Center (EPIC) was litigating its own FOIA lawsuit against the agency for records on all cellular tracking and locating devices, not just those made by Harris. EPIC’s FOIA request was submitted four months after mine. However, because the FBI actually processed EPIC’s request — as opposed to ignoring it as was done mine — EPIC began receiving records from the FBI long before I did.

According to the Aug. 29, 2013, status report filed in EPIC v. FBI, the FBI provided EPIC with 4,377 pages of documents relating to cell site simulators. In doing so, the FBI reviewed a total of 22,982 pages and withheld 18,605 pages in full. The FBI did not send EPIC a Glomar response considering EPIC did not request records on a specific manufacturer.

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In comparison, I initially received a Glomar response considering I only wanted records on Harris brand equipment. Prior to my FOIA lawsuit, the FBI claimed that “[t]he actual make and model of the equipment used in any particular [cellular device locating or tracking] operation by the FBI is law enforcement sensitive, and pursuant to FBI policy, cannot be released to the general public.” It was my July 23, 2013, motion for summary judgment and initial July 26, 2012, complaint in Rigmaiden v. FBI, et al., that caused the FBI to admit to using Harris brand equipment.

The FOIA documents provided to EPIC by the FBI were heavily redacted. The FBI claimed a series of FOIA exemptions to justify withholding certain information contained within the documents. According to the status report, the FBI was claiming exemptions 5 U.S.C. §§ 552(b)(1), (b)(4) and (b)(7)(E), to name a few.

Exemption (b)(1) allows agencies to withhold records in the interest of national defense or foreign policy. Exemption (b)(4) allows for withholding records that are privileged or confidential trade secrets or commercial or financial information. Exemption (b)(7)(E) allows for withholding records that would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.

In a FOIA lawsuit, the government is required to justify each redaction and withholding if the party bringing the lawsuit, in this case EPIC, so demands. This is done through what is known as a Vaughn index, a legal document filed by the government explaining in detail why any given piece of information is being redacted or withheld.

Rather than require the FBI to justify all exemptions in its Vaughn index, EPIC agreed to not challenge any redaction or withholding relating to exemptions (b)(1) and (b)(4), among others, and to only require the FBI to justify redactions and withholdings relating to exemptions (b)(3) and (b)(7)(E). EPIC also agreed to allow the FBI to justify the noted exemptions using a 500-page sample from the full set of 4,377 pages previously provided.

According to the Nov. 1, 2013, status report, the FBI provided EPIC with a Vaughn index justifying redactions and withholdings within the agreed upon 500-page sample on Oct. 1, 2013. The Vaughn index and sample documents are available on EPIC’s StingRay web page. The status report notes that “[t]he reprocessed pages include additional terms that had been redacted in Defendant’s original production.” According to a government motion filed in EPIC v. FBI, the sample provided to EPIC was reprocessed to reveal some Harris product names due to my efforts in Rigmaiden v. FBI, et al.:

“Specifically, as a result of a court filing in Rigmaiden v. FBI, Civ. 12-01605 (D. Az. filed July 26, 2012), ‘the [Rigmaiden] Plaintiff provided sufficient information for the FBI to reconsider whether it should continue to withhold certain identified aspects and/or terms relating to contracts with FBI contractor Harris, and certain cell-site simulator technology information’ that were potentially in the public domain.”

On April 30, 2015, Jason Koebler of Motherboard incorrectly reported that the FBI’s decision to reveal Harris terms in StingRay FOIA documents was a result of the EPIC FOIA litigation. Koebler and Motherboard failed to issue a correction after I notified Koebler of the error.

Upon reviewing the sample and accompanying Vaughn index, EPIC decided to not raise legal challenges to the FBI’s withholdings and redactions made under exemption (b)(7)(E), which protects law enforcement techniques and procedures, and exemption (b)(3), which excludes information protected by a specific statute.

According to the Nov. 1, 2013, status report, “Plaintiff [(EPIC)] has reviewed the sample Vaughn index and the reprocessed pages, and is willing to resolve the remaining legal issues in this case through settlement. Plaintiff believes that it is entitled to fees and costs[.]” In other words, litigation relating to the record disclosure was concluded, and EPIC now sought to have its legal expenses reimbursed by the FBI.

In a FOIA lawsuit, the government must reimburse the Plaintiff for fees and costs associated with the litigation if the Plaintiff substantially prevails on a legal issue. Early on in EPIC v. FBI, the court denied the FBI’s motion asking for 29 months to process EPIC’s FOIA request. Because that motion was denied, and because the records EPIC eventually received benefited the public, the FBI was ordered to pay EPIC $29,635 in attorney’s fees and costs on Feb. 20, 2015.

3. Rigmaiden v. FBI, et al., Takes Up Where EPIC v. FBI Left Off.

StingRay

EPIC did not require the FBI to justify redactions and withholdings made under FOIA exemption (b)(1), which exempts national defense information, or (b)(4), which exempts trade secrets and commercial or financial information. I, on the other hand, required the FBI to justify these exemptions. The FBI chose to fulfill my FOIA request by providing the exact same set of documents that were provided to EPIC. Therefore, I would continue to pursue legal claims in Rigmaiden v. FBI, et al., regarding the legitimacy of the FBI’s redactions and withholdings in the cell site simulator documents previously provided to EPIC.

In Rigmaiden v. FBI, et al., the FBI filed a Vaughn index in conjunction with a motion for summary judgment on March 14, 2014. This new Vaughn index was more detailed than the one provided to EPIC. In it, the FBI explained why it was withholding information under FOIA exemptions (b)(1) and (b)(4).

First, the FBI claimed it withheld “intelligence information gathered by the United States either about or from a foreign country[]” because releasing it could result in “diplomatic or economic retaliation against the United States[.]” Next, the FBI claimed it withheld the identities of telecommunications companies that provide “subscriber information” to the FBI because “business would be substantially harmed if their customers knew …” and the “stigma of working with the FBI would cause customers to cancel the companies’ services and file civil actions to prevent further disclosure of subscriber information.”

In a motion responding to the above claims, I argued that the FBI’s Vaughn index suggests illegal activity and that FOIA records should not be withheld to hide illegal activity. For example, telecommunications providers are typically immune from lawsuits if assisting the FBI pursuant to a valid court order (see, e.g., 18 U.S.C. §§ 2703(e) and 3124(d)). There is no need for the FBI to prevent civil lawsuits if the colluding telecoms are acting under the law.

In a Nov. 14, 2014, order, the judge presiding over my FOIA lawsuit, Douglas L. Rayes, found my claims of illegal activity to be “speculative” and that the FBI could otherwise withhold the information under FOIA. I was, however, credited a 2015 Foilies Award by the EFF for extracting the underlying statements from the FBI.

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The FBI won on exemptions (b)(1) and (b)(4), but it failed to convince the judge that it was just in applying exemption (b)(7)(E) to withhold technical information, such as Harris equipment user manuals. Because the FBI did not provide “a particularized explanation of why each document falls within the claimed exemption,” Judge Rayes ruled that the FBI “failed to establish a rational nexus between its law enforcement function and the information being withheld.”

Logic may presume that the FBI must now disclose all Harris cell site simulator information withheld under exemption (b)(7)(E). But FOIA litigation is not a case for logic, it is case for government pandering, as Judge Rayes allowed the FBI to redo its declaration and argue the same issue all over again. Imagine a jury finding a defendant guilty in a criminal trial, and the defense attorney turns to the judge and says, “If you let me do this trial over again, I’m certain I can convince the jury to acquit my client.” Comparatively speaking, this is exactly what the FBI asked for and got.

The FBI’s second Vaughn index, which attempts to further justify the (b)(7)(E) redactions and withholdings, was filed on May 20, 2015, with a motion asking Judge Rayes to agree with the FBI’s position. I am required to respond to the declaration and motion on or before June 22, 2015.

4. The FBI Needlessly Inflates FOIA Duplication Fees.

As noted previously, I convinced the FBI to reverse its position on concealing Harris product names within StingRay FOIA response documents. The FBI would now reprocess the 4,377 pages of documents previously provided to EPIC in order to reveal Harris product names and other relevant terms.

On Jan. 12, 2015, Judge Rayes denied the FBI’s request to take 22 months to complete the reprocessing and instead ordered that it be completed within 90 days. “Defendants have had considerable time to adequately respond to Plaintiff’s FOIA requests and the Court will not allow this case to continue indefinitely.” The 90 days began when I filed my Jan. 13, 2015, notice agreeing to pay the Bureau’s standard FOIA duplication fees (one CD per month at $15 each). I would not, however, pay search or processing fees considering I was granted a search fee waiver as a result of the bureau’s untimely response to my FOIA request.

According to a Dec. 19, 2014, e-mail sent to me by the FBI’s attorney, Brad Rosenberg, the FBI’s standard method of fulfilling FOIA requests is to provide one CD per month at $15 each. Two days prior, I sent Rosenberg an e-mail stating that “I will pay for the DVDs/CDs one at time.” Originally, this was going to be over a 22-month period, providing one 500-page CD per month billed at $15 each.

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However, because Judge Rayes ordered the FBI to process the FOIA records within three months, I logically concluded that the FBI would provide me one $15 CD per month, with each CD containing one third of the total document production. This would have come to $45 in FOIA duplication fees over three months. The FBI, however, concluded differently.

Instead of sending me one CD per month at $15 each over the three-month period ordered by the Court, the FBI sent me a first letter containing seven CDs billed at $105, a second letter containing 11 CDs billed at $165 and then a box containing 19 CDs billed at $285. The grand total came to $555 for 37 CDs ($545 actual, due to a $10 credit).

While a standard CD has a data capacity of 700 megabytes, none of the 37 CDs billed to me at $15 each were filled anywhere near capacity. In fact, the total amount of PDF files making up the FBI FOIA disclosure came to a mere 510 megabytes, which is only 72.8 percent of the capacity of a single $15 FBI CD. The FBI had violated FOIA law requiring that “fees shall be limited to reasonable standard charges for document … duplication.”

On April 11, 2015, after paying the FBI’s first $105 bill ($95 actual, due to a $10 credit), I sent an e-mail to Rosenberg explaining how the FBI was unreasonably increasing the amount of CDs in order to charge me inflated duplication fees:

“The FBI charges 10 cents per page in FOIA duplication fees for paper copies and $15 a CD for records on disc. The FBI just sent me 672 pages on 11 CDs at a cost $165.00. Had these been paper copies, which would have taken more labor to produce, I would have been charged only $67.20. Do you not see a problem with this? The PDF files on the CDs could have easily been put onto one CD. The FBI is running a scam…”

My e-mail also informed Rosenberg that the FBI’s own website has A Guide to Conducting Research in FBI Records explaining the FBI’s policy that some FOIA responses “may take up many discs, but most releases fit on a single disc.” As documented in my declaration filed in Rigmaiden v. FBI, et al., each of the three FBI releases would have fit on a single disc.

Instead of responding to my e-mail, the FBI sent me another 19 CDs (totaling a mere 385 megabytes), billed me $285, and then deleted the FOIA guide from its website. Yes, the FBI actually deleted the FOIA guide from its website after I brought it to Rosenberg’s attention:

Eleven days after inflating my bill to $555, the Bureau fulfilled a separate StingRay FOIA request, submitted by Alex Richardson, by providing the exact same set of PDF documents that had been provided to me. However, instead of providing them on 37 CDs for $555, the FBI provided them to Richardson on a single CD priced at $15.

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The FBI’s April 24, 2015, letter to Richardson states, “Enclosed is one CD containing 4,571 pages of previously-processed documents and a copy of the Explanation of Exemptions.” The FOIPA Request number shown within the “previously-processed documents” provided to Richardson is 1212582, which matches the FOIPA Request number assigned to me by the FBI in 2013. When providing the exact same set of documents to Richardson, the FBI followed its public FOIA guide stating that “most releases fit on a single disc.”

5. Muckrock is Falsely Credited for “Obtaining” the Rigmaiden v. FBI, et al. StingRay FOIA Documents.

Richardson made his StingRay FOIA request using Muckrock, a web-based service that assists FOIA requesters in making FOIA requests. As noted above, Richardson was provided with a duplicate of the records obtained in Rigmaiden v. FBI, et al., after they were provided to me.

On April 28, 2015, Muckrock released the duplicate of my FOIA response documents on its website. Media outlets credited Muckrock for “obtaining” the newly un-redacted records while failing to realize that they actually resulted from the independent, but complementing, efforts of Alan Butler, et al., counsel in EPIC v. FBI, and myself in Rigmaiden v. FBI, et al. Even after I notified Muckrock, its journalist, Shawn Musgrave, continued to report on my specific set of StingRay FOIA documents (Harris terms un-redacted) without crediting me or Rigmaiden v. FBI, et al. for obtaining them.

When journalists report on government documents that were obtained as a result of FOIA litigation, it is vital that the lawsuit be credited, else great harm is done to government transparency efforts. It is no secret that the government abuses the FOIA process. Only when a FOIA requester files suit and wins on a substantial legal issue does the government learn its lesson. Part of that lesson involves forcing the government to reimburse attorney’s fees and other litigation costs associated with the lawsuit. This serves as a deterrent to future government FOIA abuse.

One factor courts weigh when determining whether to force the government to pay is “the public benefit derived from the case.” The FBI was forced to pay EPIC $29,635 based in part on a court finding that “media sources discuss[ed] the documents obtained by EPIC[.]” When a media source, such as Muckrock, fails to credit Rigmaiden v FBI, et al., for obtaining the StingRay documents it discusses, and even goes so far as to claim them as its own “hard won” victory, it only makes it easier for the government to unjustly avoid court ordered reimbursement.

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Because I am not a lawyer and am representing myself, I cannot ask for reimbursement of “attorney’s fees,” but I can ask for reimbursement of other litigation costs, such as my $350 lawsuit filing fee. Even a $350 court-ordered reimbursement will result in negative marks on the records of those U.S. DOJ personnel who acted recalcitrant and obdurate in their opposition to my valid FOIA claims. Negative marks of this nature will act to deter future FOIA abuses.

6. The FBI is Using Unlawful FOIA Duplication Fees in an Extortion Scheme.

Collectively, the FBI’s letters demand that I pay the inflated $555 FOIA duplication fee bill by May 13, 2015. Each letter warns that “[f]ailure to pay for this release within thirty (30) days from the date of this letter will close any pending FBI FOIPA requests from you. Nonpayment will also cause an automatic denial of any future FOIPA requests.”

Additionally, the Bureau is required to collect the $555 while following “the provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749) … including the use of consumer reporting agencies, collection agencies, and offset[.]” In other words, I will receive a negative mark on my otherwise perfect credit history if I do not pay the FBI’s inflated FOIA duplication fees.

In my resident state of Arizona, criminal extortion occurs when a person “knowingly obtain[s] or seek[s] to obtain property or services by means of a threat to … [e]xpose … an asserted fact, whether true or false, tending to … impair the person’s credit …” or, among other threats, “[t]ake or withhold action as a public servant[.]”

First, the FBI arbitrarily charged me $555 in FOIA duplication fees while fulfilling Richardson’s duplicate request on one CD priced at $15. Second, the FBI threatened to withhold “public servant” action on all of my FOIA requests and to impair my credit unless I pay the $555. Third, because the $555 fee was unlawful under FOIA, which limits agencies to charging only reasonable fees, the FBI has no affirmative defense to an extortion claim. Therefore, the actions taken by FBI personnel meet the definition of extortion under Arizona law.

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But is the FBI really interested in making $555 through an extortion scheme? No. Rather, the Bureau is interested in finding a way to end my litigation which has, at times, cost the FBI the labor of “[f]ive FBI FOIA analysts … working nearly full-time re-processing plaintiff’s request[,]” and “the dedication of other the Bureau resources, including from the FBI’s Operational Technology Division.” On May 20, 2015, the FBI filed a motion asking Judge Rayes to dismiss my lawsuit because I am “now delinquent in the amount of $450.”

After the FBI filed its motion to dismiss for my failure to pay, I was able to obtain and send the remaining $450 to the FBI. However, I did this under duress and at great risk to my livelihood. I have asked Judge Rayes to order the FBI to return all funds over $45, the amount I should have been billed had the FBI properly provided documents on one CD per month over three months.

The FBI, through its counsel Brad Rosenberg, did not return a request for comment on the extortion issue.

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