The FBI has refused to confirm or deny if it has recent records about its practice of requiring local police to sign strict nondisclosure agreements prior to purchasing invasive cell phone tracking technology. But the FBI acknowledged imposing these NDAs on local police years ago, and even recognized problems created by the practice. So what is the FBI trying to hide now? And do the feds really not appreciate the irony of refusing to confirm or deny the existence of secrecy agreements? The public deserves to know, and we’re suing to find out.

Cell site simulators — also known as “Stingrays” or “IMSI catchers” — function by mimicking signals sent from a cell tower and forcing mobile phones in the area to communicate with them. They permit law enforcement to track individuals even when they’re somewhere that’s typically protected from warrantless searches, like a home. Regardless of law enforcement’s intended target, cell site simulators collect data from all phones in their vicinity and can also interfere with nearby phones’ connections to the cellular network.

For decades, law enforcement agencies across the country have used Stingrays to locate and track people in all manner of investigations, from local cops in Annapolis trying to find a guy who nabbed 15 chicken wings from a delivery driver, to ICE tracking down undocumented immigrants in New York and Detroit. But until a few years ago, even the existence of this technology was shrouded in near-complete secrecy. As it turns out, the FBI went to great lengths to prevent knowledge of cell site simulators from entering public awareness, requiring state and local law enforcement agencies to sign nondisclosure agreements before purchasing the technology — a practice it now refuses to confirm or deny if it has continued. These agreements not only prevented cops from revealing their purchase or use of the technology to the public, but it even forced them hide it from judges and defense attorneys in court proceedings.

After the ACLU, journalists, and others successfully forced release of copies of the NDAs through public records requests, judges and lawmakers started learning about the previously secret surveillance and criticized the FBI for imposing such draconian secrecy. As one court put it, “such an extensive prohibition on disclosure of information to the court .. . prevents the court from exercising its fundamental duties under the Constitution.” The FBI itself acknowledged the practice and tried to distance itself from the knots local police had tied themselves in attempting to comply with the NDA’s secrecy requirements including going as far as dismissing criminal prosecutions instead of revealing accurate information about tech surveillance to criminal defense lawyers.

The problems posed by cell site simulators have been largely out of the spotlight for a few years, but recent reporting indicates that while police departments have started buying cell site simulators from new sources, the public lacks information about whether the FBI continues to impose secrecy requirements on local cops. In January 2021, the ACLU submitted a FOIA request to the FBI asking the agency to release any nondisclosure agreements entered into since 2018 to keep state and local law enforcement’s purchase and use of cell site simulators secret, as well as information about other conditions imposed on local police when they purchase and use the technology.

Normally, federal agencies must respond to FOIA requests by searching for responsive records and releasing them to the requester, with narrow redactions of legitimately secret information if necessary. But in response to our request, the FBI issued a “Glomar response,” meaning they refused to confirm or deny the existence of any responsive records. Glomar responses are only legal in rare situations where disclosing the existence (or non-existence) of the requested records would itself reveal information that is exempt from disclosure under FOIA.

In this case, the FBI’s Glomar response doesn’t come close to passing the sniff test. The FBI merely claimed, without explanation, that disclosing whether it has any nondisclosure agreements about cell site simulators “would disclose the existence or non-existence of non-public law enforcement techniques, procedures, and/or guidelines.” It is true that non-public law enforcement techniques, procedures, and guidelines can sometimes be exempt from disclosure under FOIA. But the fact of whether the FBI has continued to impose nondisclosure agreements and other conditions on local and state police isn’t a secret law enforcement technique or procedure — it’s basic information about whether the government is evading foundational transparency requirements we expect in a democratic society. And it’s something the FBI has already publicly admitted to doing.

This is not the first time we’ve seen efforts to keep information about cell site simulators secret devolve into farce. In fact, this secrecy on top of secrecy (a Stingray secrecy sandwich, if you will) would be silly if it wasn’t so offensive to basic notions of government transparency — and illegal.

The public has a right to know whether the FBI is continuing to require law enforcement agencies to withhold information regarding invasive surveillance technology. We’re suing so that information reaches the light of day.

Throughout his presidential campaign, then-candidate Joe Biden promised to “revitalize our national commitment to advancing human rights and democracy around the world.” More than a year after the election, however, his administration hasn’t gone far enough to significantly move the needle on human rights.

The United States’ meager commitments presented before last week’s Summit for Democracy are illustrative. Instead of undertaking new initiatives to protect democracy, advance racial justice, and implement U.S. obligations on human rights, the Biden administration chose, with few exceptions, to essentially repackage existing and ongoing actions.

The White House’s statement ahead of the Summit for Democracy contained more than 10,000 words on strengthening democracy, fighting corruption, and advancing human rights, but there was not a single word about implementing U.S. human rights obligations under the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (CAT), or the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

Strengthening democracy and fighting corruption are noble causes, but it is essential that the Biden administration translate its commitment to center human rights in foreign and domestic policy into concrete actions. If the Biden administration wants to get serious on human rights, it can act now on three essential areas to further demonstrate its commitment.

First, it can establish an inter-agency working group dedicated to implementing our human rights obligations. This is a critical component to ensuring that we are fulfilling our promises to international human rights bodies and leading by the power of example. We have yet to fully implement a number of international human rights treaties, including the ICERD and CAT.

The failure to create a federal body to oversee implementation of human rights treaties that many other democracies have had in place for years or even decades is a stain on the U.S. human rights record and one that can be easily fixed with action from the Biden administration.

The U.S. has claimed in multiple reports issued this year that it is “committed to performing its obligations” under treaties including the ICCPR, CAT, and ICERD, but the reports fail to even mention exploring new mechanisms to promote U.S. accountability and fail to accurately address policies and practices — including the treatment of asylum seekers — that are in direct conflict with the treaties. This is unacceptable, and the Biden administration has a responsibility and a mandate to accurately reflect our limited progress on human rights and to take bold action to realize our promises.

The administration’s prioritization of racial justice and equity at home and abroad are laudable improvements compared to the prior administration, but the U.S. must also prioritize the inclusion and implementation of our human rights obligations, especially under the International Convention on the Elimination of All Forms of Racial Discrimination, which the U.S. ratified nearly three decades ago.

The executive branch can play a pivotal role here. An administrative review of racial equity across the federal government already mandated by President Biden’s executive order can be easily expanded to cover review and implementation of the ICERD.

After four years under the Trump administration during which human rights were repeatedly violated and international human rights bodies were attacked and boycotted, the implementation of human rights treaties would send a powerful message that the United States firmly supports these agreements and is reengaging on the world stage in a meaningful way and building the necessary domestic infrastructure to sustain our progress on human rights and prevent future assaults.

Second, the United States can heed the over 340 recommendations from the United Nations Human Rights Council’s Universal Periodic Review, which in November called on the U.S., among many human rights issues, to abolish the death penalty, extreme sentencing, and disproportionate punishments and take more action to end systemic racism, especially in the context of law enforcement.

The U.S. recently won an uncontested election for a seat on the Human Rights Council, but reengagement on human rights requires more than membership in the world’s largest human rights body. It requires that the Biden administration look critically at the U.S.’ human rights record and commit to making these important changes at the executive level and advocating for Congress and states across the country to take additional action to ensure we are leading on human rights at home and abroad.

Third, the Biden administration can pledge to study the feasibility of a National Human Rights Institution, which advocates including the ACLU have been calling on the U.S. to establish for years. A NHRI charged with monitoring and promoting international human rights standards would serve as a key watchdog in ensuring we are up to date on our obligations and that federal, state, and local governments are protecting human rights norms and fostering a respect for universal human rights here at home.

President Biden’s Summit for Democracy wasn’t completely devoid of important new commitments, however. New actions by the Centers for Medicare & Medicaid Services and Small Business Administration to improve access to voter registration are important steps to help protect and expand access to the ballot box. But those commitments would be further strengthened by the Biden administration taking action on human rights and racial justice.

We are at a critical inflection point on human rights. President Biden’s promise to take “decisive action to restore and strengthen American democracy” requires a transformative investment in domestic human rights, including by incentivizing state and local governments to uphold human rights here at home, as the U.N. High Commissioner for Human Rights called for in her landmark report on systemic anti-Black racism this summer.

Centering human rights in domestic policy need not wait for another summit, but should be turned into reality to positively impact the lives of millions of people in the United States. There is no time to waste.

When Texas banned nearly all abortions, it showed us that what happens on the state level can reach far beyond state lines. Just as starkly, it has shown the grim reality that when reproductive freedom comes under threat, people of color and those on the economic margins will undeniably bear the brunt of the harms caused by abortion restrictions.

Following the Texas ban, people flooded New Mexico and Oklahoma for appointments – but those without the resources required to book appointments, travel hours over state lines, miss work, secure childcare, and pay medical expenses could not access the care they needed.

While New Jerseyans aren’t subjected to the extreme restrictions happening in Texas, abortion access and reproductive health care remain out of reach for far too many. Though New Jerseyans currently have the right to an abortion, that doesn’t mean that everyone can access it. It’s past time for New Jersey to affirm autonomy, racial and economic justice, and community health to ensure that reproductive health care is accessible for all who need it.

We can achieve that by passing the Reproductive Freedom Act (S3030/A4848), currently before the New Jersey Legislature.

The Reproductive Freedom Act – known as the RFA – seeks to dismantle barriers to abortion that are rooted in systemic inequities and white supremacy while expanding access to reproductive health care for all New Jerseyans, regardless of income level, immigration status, or gender identity.

Introduced by prime sponsors Senator Loretta Weinberg and Assemblywoman Valerie Vainieri Huttle, the RFA will strengthen New Jerseyans’ reproductive freedom.

In a 2021 poll, 87 percent of New Jersey residents said pregnant people should be the ones who make decisions about abortion, not politicians. The centerpiece of the RFA takes that to heart, declaring the right to reproductive health care, including abortion, by law. Reaffirming New Jerseyans’ fundamental right to autonomy is an essential part of protecting and expanding access to reproductive health care. The RFA declares that the decision if and when to seek an abortion is a decision made by a patient in consultation with their health care provider.

This declaration is necessary because it provides patients and providers with a clear affirmation of the right to abortion. But a declaration of rights doesn’t ensure those who need care can access it. Many barriers – including high costs, limited access to providers, discrimination, and more – prevent people from getting the care they need. That’s why the RFA can’t stop at simply declaring the right to abortion in New Jersey – it must expand how people access care in the state.

The RFA will begin to remove some of these barriers, especially for people of color, low-income New Jerseyans, people who are LGBTQ+, and immigrant community members who are all disproportionately affected by these barriers to accessing care. And for New Jerseyans who live in the intersections of these identities, the obstacles are that much greater.

The attacks on reproductive freedom in state legislatures and the cases before the Supreme Court make it all the more urgent for New Jersey to unequivocally affirm our right to reproductive health care, including abortion. But we cannot and will not stop there. We must commit to removing the harmful barriers that make accessing that right so difficult for so many. In the past three years alone, 12 bills have been enacted around the country to protect and expand access to abortion care. By making the RFA law, New Jersey will join these states in leading the way toward protecting and expanding reproductive freedom.

The experiences of patients and providers have shown that systemic inequities make accessing the constitutional right to an abortion out of reach for far too many New Jerseyans. The RFA would ensure that all New Jerseyans can make their own decisions about their bodies, health, and families free from discrimination and government intrusion and without barriers to equitable access.

New Jerseyans have the power to demand that abortion be accessible and safe for everyone, regardless of race, ethnicity, income, gender identity, or immigration status. New Jersey has the opportunity to prioritize equity and justice by passing the Reproductive Freedom Act. Rights without access is not enough.

This blog was originally published by the ACLU of New Jersey here.