PO Box 1293 Albuquerque NM 87103 srwcibg gov Samantha Hults, Acting City Attorney P.O. Box 2248 Albuquerque, New Mexico 87103 Phone (505) 768-4500 ~ Fax (505) 768-4440 January 18, 2018 Via Hand-Delivery Maria Mattinez Sénchez ACLU of New Mexico P.O. Box 566 Albuquerque, NM 87103 Re: American Civil Liberties Union of New Mexico v. City of Albuquerque; D-202-CV-2017-04971 Dear Ms, Sfnchez: ‘My client has reevaluated Ms, Katie Hoeppner's IPRA Request #17-2116. Below I have outlined Ms. Hoeppner’s original request and my client’s present response: fs How many ISMI catchers the Albuquerque Police Department (APD) currently owns and operates. As previously asserted, there are no responsive records to this request, but see generally Defendant's response to #7. Policies and procedures regarding the collection, retention, and storage of data from cellphones and digital devices through the use of ISMI catchers or other related technologies used to collect and analyze digital data. This includes how the APD handles data that it obtains from irmocent bystanders who are not the targets of investigation govt At the time of Mis. Hoeppner’s requét, APD did not have writen polictes and procedures of the type requested. However, see Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology, see attached, and, as you already know, APD has since drafted policies and procedures concerning “ISMI catchers,” see attached, Abagergne = BMMaria Martinez, Sinchez January 18, 2018 Page 2 3 Policies and procedures regarding the personnel authorized to use ISMI catchers, including whether or not such personnel are required to obtain warrants and or (ie) go through training before utilizing such technology. ‘See Defendant's response to Request #2. Records or statistics that depict how often the APD has used ISMI catchers since daoquiring them. As previously asserted, there are no responsive records to this request. Policies and procedures, official guidelines, agency directives, or any information regarding the use of ISMI catchers to be used in conjunction with federal agencies including the Department of homeland Security (DHS) and Immigrations and Customs Enforcement (ICE) in immigration related investigations. ‘See Defendant's response to Request #2 Contracts or memorandums of understanding with external agencies, including the New Mexico Depariment of Public Safety, Bernalillo County Sheriff's Office, or any federal agencies regarding the shared use of ISMI catchers and the data collected. See November 20, 2014 Non-Disclosure Agreement (executed December 1, 2014), autached hereto; see December 4, 2014 Non-Disclosure Agreement (executed December 23, 2014), attached hereto. Contracts or purchase agreements with the Harris Corporation, federal law enforcement agencies, or manufacturers of technology used to capture, store and analyze digital data ‘See Lease Contract between Harris Corporation and City of Albuquerque (redacted pursuant to NMSA 1978, § 14-2-1(A)(4) and (8); NMSA 1978, § 57-3A-1 to -7 (Uniform Trade Secrets Act); Rule 11-508 NMRA (Trade Secrets); 6 U.S.C. § 482(e) (Homeland Security Act); 22 C.P.R., Parts 120-130 (Intemational Traffic in Arms Regulations); see Harris Corporation Shipping Requests, (redacted pursuant to NMSA 1978, § 14-2-1(A)(4) and (8); NMSA 1978, § 57-3A+1 to -7 (Uniform Trade Secrets Act); Rule 11-508 NMRA. (Trade Secrets); 6 U.S.C. § 482(e) (Homeland Security Act); 22 C.F.R., Parts 120-130Maria Martinez Sanchez January 18, 2018 Page 3 (International Traffic in Arms Regulations)); see DRT documents pertaining to Order 4903943,00 (redacted pursuant to NMSA 1978, § 14-2-1(A)(4) and (8); NMSA 1978, § 57-3A+] to -7 (Uniform Trade Secrets Act); Rule 11-508 NMRA (Trade Seerets); 6 U.S.C. § 482(e) (Homeland Security Act); 22 C.F.R., Parts 120-130 (Internetional Traffic in Arms Regulations). The enclosed production of the above-referenced documents fulfills Ms. Hoeppner's IPRA Request #17-2116. | look forward to working with you to close out the related Tavsuit Kristin J. Dalton Assistant City Attorney Enclosures: as statedDepartment of Justice Policy Guidance: Use of Cell-Site Simulator Technology Cell-site simulator technology provides valuable assistance in support of important public safety objectives. Whether deployed as part of a fugitive apprehension effort, a complex narcotics investigation, or to locate or rescue a kidnapped child, cell-site simulators fulfill critical operational needs. ‘As with any law enforcement capability, the Department must use cell-site simulators in a manner that is consistent with the requirements and protections of the Constitution, including the Fourth Amendment, and applicable statutory authorities, including the Pen Register Statate, Moreover, any information resulting fiom the use of cell-site simulators must be handled in a ‘way that is consistent with the array of applicable statutes, regulations, and policies that guide Jaw enforcement in how it may and may not collect, retain, and disclose data. As technology evolves, the Department must continue to assess its tools to ensure that practice and applicable policies reflect the Department's law enforcement and national security missions, as well as the Department's commitments to accord appropriate respect for individuals’ privacy and civil liberties. This policy provides additional guidance and establishes common principles for the use of cell-site simulators across the Department.’ The Department's individual law enforcement components may issue additional specific guidance consistent with this policy. BACKGROUND Cell-site sinmulators, on occasion, have been the subject of misperception and confusion, To avoid any confusion here, this section provides information about the use of the equipment and defines the capabilites that are the subject of this policy. Basie Uses Law enforcement agents can use cell-site simulators to help locate celhilar devices whose unique identifiers are already known to law enforcement, of to detenuaine the unique identifiers of an unknown device by collecting limited signaling information from devices in the simulator user’s vicinity, This technology is one tool among many traditional law enforcement techniques, and is deployed only in the fraction of cases in which the capability is best suited to achieve specific public safety objectives. "This policy applis tothe use ofesl-site simulator technolouy inside the United States in artherance of eriainal investigations. When aeting pursuant to the Foreign intelligence Surveillance Act, Departinent of Justice components will make a probable-couse based showing an! appropriate disclosures to the cour ina manner th is consistent withthe guidance set forth inthis policy.How They Function Cell-site simulators, as governed by this policy, fametion by transmitting asa cel tower response to the signals emitted by the simulator, celular devices in the proximity ofthe device identify the simulator as the most attractive cell tower in the area and thus transmit signals to the simulator that identify the device in the same way that they would with a networked tower, A celt-site simulator receives and uses an industry standard unique identifying number assighed by a device manufacturer or cellular network provider. ‘When used to locate anova cellular device, a cell-ste simulator initially receives the unique identifying number from tmultiple devices in the vicinity of the simulator. Once the eel-site simulator identifies the specific cellular device for which it is looking, it will obtain the signaling information relating chly to that particular phone. When used to identify an unknown device, he cell-site simulater obtains signaling information from non-target devices inthe targets vicinity forthe limite Purpose of distinguishing the target device. / What they Do and Do Not Obtain By transmitting as a cell tower, cell-site simulators acquire the identifying information from cellular devices. This identifying information is limited, however, Cell-site eae Provide only the relative signal strength and genera direction ofa subject cellular telephones ; they do not function as a GPS locator, as they do not obiain or download eny location no information from the device or its applications. Moreov it Department must be configured as pen texisters, and fay any Communication, in accordance with 18 U.S.C. § 3127(3). This includes any date contained on te phone itself: the simulator doesnot remoiely eapture emails, texts, contact lists images or any other data from the phone. In addition, Department cellsite simulators do not provide Subseriber account information (for example, an aecount holder's name, address, or telephone number), MANAGEMENT CONTROLS AND ACCOUNTABILITY? | Celt-site simulators require training and practice to operate correctly, To that end, the | following management controls and approval processes will help ensure that only knowledgeable | and accountable personnel will use the technology ya were ys | 1) Department personnel must be trained and supervised appropriately. Cell-site Similators may be operated only by trained personnel who have been authorized their agency to use the technology and whose training has been administered by a qualified egency component or expert gee eeELOPL epee lieysdance is intended only to improve te intemal mamigement ofthe Department of luster isnot iended oand doesnot create any right, benef, sl, or responsibly, whether susearthe procedural, Sree te wor equity by a party aginst the United Stes, is dopanments easton ‘nsteumentalltios, | judi, or age ozeES 0 RN, oF any person, nor docs it crea any cigh of evi ln sh sine ive, Judicial, or any other proceeding |2. Within 30 days, agencies shall designate an executive-level point of contact at each division or disttict office responsible for the implementation of this policy, and for promoting compliance with its provisions, within his or her jurisdiction, Prior to deployment of the technology, use of a cell-site simulator by the agency must be approved by an appropriate individual who has attained the grade of a first-level supervisor, Any emergency use of a cell-site simulator must be approved by at appropriate second-level supervisor. Any use ofa cell-site simulatorQq av area alt must be approved either by the executive-level point of contact for the jur i, as desoribed in paragraph 2 of this section, or by a branch or unit chief at the agency's headquarters. Each agency shall identify training protocols, ‘These protocols must include training on privacy and civil liberties developed in consultation with the Department’s Chief Privacy and Civil Liberties Officer. LEGAL PROCESS AND COURT ORDERS: ‘The use of cell-site simulators is permitted only as authorized by law and policy) While the Department has, in the past, appropriately obtained authorization to use a cell-sité simulator by seeking an order pursuant to the Pen Register Statute, as a matter of policy, law enforcement agencies must now obtain a search warrant supported by probable cause and issued pursuant to Rule 41 of the Federal Rules of Criminal Procedure (or the applicable state equivalent), except as provided below. Asa practical matter, because prosecutors will need to seek authority pursuant to Rule 41 andl the Pen Register Statute, prosecutors should, depending on the rules in their jurisdiction, either (1) obtain a warrant that contains all information required to be included in a pen register order pursuant to 18 U.S.C. § 3123 (or the state equivalem), or (2) seek a warrant and a pen register order concurrently. ‘The search warrant affidavit also must reflect the information noted in the immediately following section of this policy (“Applications for Use of Cell-Site Simulators”). ‘There are two circumstances in which this policy does not require a warrant prior to the use of a cell-site simulator. J. Exigent Cireumstances under the Mourth Amendment Exigent circumstances can vitiate a Fourth Amendment warrant requirement, but cell-site simulators still require court approval in order to be lawfully deployed. An exigency that excuses the need to obtain a warrant may arise when the needs of law enforcement are 50 compelling that they render a warrantless search objectively reasonable, When an officer has the requisite probable cause, a variety of types of exigent circumstances may justify dispensing with a warrant. These include the need to protect human life or avert serious injury; the prevention of the imminent destruction of evidence; the hot pursuit of a fleeing felon; or the prevention of escape by a suspect or convicted fugitive ftom justice.In this circumstance, the use of a cell-site simulator still must comply with the Pen Register Statute, 18 U.S.C. § 3121, ef seg., which ordinarily requires judicial authorization before use of the cell-site simulator, based on the government's certification thatthe information sought is relevant to an ongoing criminal investigation. In addition, in the subset of exigent situations where circumstances necessitate emergency pen register authority pursuant to 18 U.S.C. § 3125 (or the stave equivalent), the emergency must be among those listed in Section 3125: immediate danger of death or serious bodily injury to eny petson; conspiratorial activities characteristic of organized crime: an immediate threat to a national security interest; or an ongoing attack on a protected Computer (as defined in 18 U.S.C. § 1030) that constitutes a crime punishable by a term of imprisonment greater than one year. In addition, the operator must obtain the requisite internal approval to use a pen register before using a cell-site simulator. In order to comply with the terms of this policy and with 18 U.S.C. § 3125, the ‘operator must Contact the duty AUSA in the local U.S. Attorney's Office, who will then call the DOJ Command Center to reach a supervisory attorney in the Electronic Surveillance Unit (ESL) of the Office of Enforcement Operations." Assuming the parameters of the statute ate met, the ESU attomey will contact a DAAG in the Criminal Division’ and provide a short briefing. Ifthe DAG approves, the ESU attomey will relay the verbal authorization to the AUSA, who must also apply for a court order within 48 hours as required by 18 U.S.C. § 3125, Under the provisions of the Pen Register Statute, use under emergency pen-trap authority must end when the information sought is obtained, an application for an order is denied, or 48 hours has passed, whichever comes first, Exceptional Circwnstances Where the Law Does Not Require a Warrant There may also be other circumstances in which, although exigent circumstances do not ¢xist, the law does not requite a search warrant and circumstances make obtaining 2 Search warrant impracticable. In such cases, which we expect to be very limited, agents Imust first obtain approval from executive-level personnel atthe agency's headquarters aud the relevant U.S. Attorney, and then from a Criminal Division DAAG. The Criminal Division shall keep track of the number of times the use of a cell-site simulator is approved under this subsection, as well as the circumstances underlying each such use. In this circumstance, the use of a cell-site simulator still must comply with the Pen Register Statute, 18 U.S.C. § 3121, ersey., which ordinarily requires judicial. authorization before use of the cel-site simulator, based on the government's certification {hat the information sought is relevant to an ongoing criminal investigation. In addition, } Knowing use ofa pen resister under emergency authorization without applying or a cou onder within 48 hours is ‘criminal violation ofthe Pen Rewister State, pursuant to 18US.C. § 3125(¢), | on: era cass, he operaor mus conte! the prosecutor and any oer aplieable pins of cone forthe site or local jurisdiction, pit seauess for emergency pen authority and fr elie undo the exceptions eireunstances provision, the Criminal Seegiot AAG villeonstl as approprite witha National Security Division DAAG on mates widia enn Secwily Division’s purview,ifcircumstances necessitate emergency pen register authority, compliance with the provisions outlined in 18 U.S.C. § 3125 is required (see provisions in section | directly above). APPLICATIONS FOR USE OF CELL-SITE SIMULATORS When making any application to a court, the Department's lawyers and law enforcement officers must, as always, disclose appropriately and accurately the underlying purpose and activities for which an order or authorization is sought. Law enforcement agents tmust consult with prosecutors® in advance of using a cell-site simulator, and applications for the use of a cell= site simulator must include sufficient information to ensure that the courts are aware that the technology may be used.” |. Regardless of the legal authority relied upon, at the time of making an application for use of a cell-site simulator, the application or supporting affidavit should describe in general tens the technique to be employed. ‘The description should indicate that investigators plan to send signals to the cellular phone that will eause it, and non-target phones on the samme provider network in close physical proximity, to emit unique identifiers, which will be obtained by the technology, and that investigators will use the information collected to determine information pertaining to the physical location of the target cellular device or to determine the currently unknown identifiers of the target device, If investigators will use the equipment to determine unique identifiers at multiple locations and/or rmultiple times at the same location, the application should indicate this also, An application or supporting affidavit should inform the court that the target cellular device (e.g,, cell phone) and other cellular devices in the atea might experience a temporary disruption of service from the service provider. The application may also note, if accurate, that any potential service disruption 10 non-target devices would be temporary and all operations will be conducted to ensure the minimal amount of interference to non-target devices. An application for the use of @ cell-site simulator should inform the court about how law enforcement intends to address deletion of data not associated with the target phone, ‘The application should also indicate that law enforcement will make no affirmative investigative use of any non-target data absent further order of the cour, except to identify and distinguish the target device from other devices While this provision typically wil implicate notification to Assistan! United Stnles Attomeys, i also extends 10 stale and local prosecutors, witere such personnel are engaged in operations involving cell-ste simulators, Cours in certain jurisdictions inay require additional technical information garding the cellsitesimulaton's operntion eg. tradecraf, capebilitis, limitations or specifications). Sumple applications containing such technical {information ae available from the Computer Crime and Intellectual Property Seetion (CCIPS) of the Criminal Division. To ensure couns receive appropriate and accurate information regarding the technical information described nbove, prior to filing an application tha devintes from the sample Milings, agents or prosccutors must Contact CCIPS, which will coordinate with yppropriate Department componcnts.DATA COLLECTION AND DISPOSAL. ‘The Department is committed to ensuring that law enforcement practices conceming the collection or retention’ of data are lawful, and appropriately respect the importeat privacy interests of individuals. As part of this commitment, the Department's law enforcement agencies operate in accordance with rules, policies, and laws that control the collection, retention, dissemination, and disposition of records that contain personal identifying information, As with data collected in the course of any investigation, these authorities apply to information collected through the use of a cell-site sinmutator. Consistent with applicable existing laws and requirements, including any duty to preserve exculpatory evidence,’ the Department’s use of cell-site simulators shall include the following practices: 1, When the equipment is used to locate a known cellular device, all data must be deleted as soon as that device is located, and no less than once daily. 2, When the equipment is used to identify an unknown cellular device, all data must be deleted as soon as the target cellular device is identified, and in any event no less than once every 30 days, 3. Prior to deploying equipment for another mission, the operator must verify that the equipment las been cleared of any previous operational data Agencies shall implement an auditing program to ensure that the data is deleted in the manner described above. STATE AND LOCAL PARTNERS ‘The Department often works closely with its State and Local law enforcement partners and provides technological assistance under a variety of circumstances. This policy applies to all instances in which Department components use cell-site simulators in support of other Federal agencies and/or State and Local law enforcement agencies. TRAINING AND COORDINATION, AND ONGOING MANAGEMENT Accountability is an essential element in maintaining the integrity of our Federal law enforcement agencies, Each law enforcement agency shall provide this policy, and training as appropriate, to all relevant employees. Periodic review of this policy and training shall be the * tn the context of his policy. the terms “eollcetion dross only the unique technical process of identifying dialing routing, addressing, or signaling information, as described by 18 US.C. § 31270), {mitted by cellular devices, “Collection” mieans the process By which unique ideals signals are obtained: “retention” refers o the period during which the dialing rong, addressivg, or signaling informatio i utilized to locate or identity & target device, continuing until the point at which such information is dolled, ' * this not likely, given 1he limited type of dala cellsite simulators collect (as discussed above), that exculpatory evidence would be obtained by a eel-site simulator inthe course oF erininal inv enforcement investigations, As in ther circunstaices, however, to the extent investigators know or have reason to belive tat information is exculpatory or impeaching they have a duty to memorialize that information,responsibility of each agency with respect to the way the equipment is being used (e.g. significant advances in technological capabilities, the kind of data collected, or the manner in which itis collected), We expect that agents will familiarize themselves with this policy and comply with all agency orders concerning the use of this technology. Each division or distict office shall report to its azency headquarte:s annual records reflecting the total number of times a cell-site imulator is deployed in the jurisdiction; the umber of deployments at the request of other agencies, including State or Local law enforcement; and the number of times the technology is deployed in emergency circumstances Similarly, it is vital that all appropriate Department attorneys familiarize themselves with the contents of this policy, so that their court filings and disclosures are appropriate and consistent. Model materials will be provided to all United States Atomeys' Offices and litigating components, each of which shall conduct training for thelr attorneys. Cellesite simulator technology significantly enhances the Department's efforts to achieve its public safety and law enforcement objectives, As with other capabilities, the Department ‘mist alvays use the technology in a manner that is consistent with the Constitution and all other legal authorities. This policy provides additional common principles designed to ensure that the Department continues to deploy cell-site sinulators in an effective, appropriate, and consistent way.Albuquerque Police Department Special Investigations Division Electronic Support Unit 1. Mission Statement Provide equipment, technology, and trained personnel to enhance and support investigations, ‘enforcement, and agency operations. 2, Unit Responsibility Te ElectronieSupport Unt {ESU) is @ unit designed to asst ll sections ofthe Abuquerque Police Department, The ESU wil be housed out of the Special investigations Ovsion and will have sole responsiblity for electronic equipment associated with suwelllance, tracking, and monitoring twill implement and maintain an environment of quality technology fér use by all mernbers ofthe APO and will strive to upgrade and improve current electronic devices as new technology evolves. ‘The ESUis administered by the Commander of thé Special investigations vision, Direct supervision is provided by the Electronic Support Unit Sergeant. A, Detective Responsibility ‘ 41, Be responsible for installation and implementation of various surveillance camera systems, audio recording devices, and other investigative techinology used by the department; 2, Be familar with the latest technology relating to surveillance and tracking operations; ge responsible for developing and conducting training for department members relating to the use of ESU equipment as needed. 3. Confidentiality Due to the sensitive nature of surveillance operations and the equipment utilized by the ESU, all ESU membets and anjane temporarily assigned to the unit will abide by the SCIU non-disclosure agreament, and any other equipment/vendor specific non-disclosure agreements in place Tce Law afore Sevsve Information consid on this pagel or sao law enforcement ue only the course of thor fil duties and is eer Intended nor suable ‘Dr asieaseto the geaeral ube. Inloraton on this pag may be exempt om public inspection becouse it detail confidential sources, nathods,procedurey, anor information, (Refer to HMSA 1978, Chapter 88, rl 2 Secon & Law Enfororant Records) J Page tofAlbuquerque Police Department | Special Investigations Division | Electronic Support Unit 4, Associations ‘The National Technical Investigators Association (NATIA) is @ professional law enforcement association that provides training, education, and certification in the area of law enforcement technical surveillance, tactical operations, and forensic activities. A. Membership ESU members will be required to become members of NATIA, funded through the APD. Membership provides many benefits including access to online forums, online traning and documents, and access for opportunities to network with other law enforcement agencies for assistance. NATIA also maintains a reference manual which provides a wealth of information related to basic knowledge required for working in technical surveillance operations. B. Certification ~ NATIA has a Certified Technical Investigator (CTI) program which reflects 8 standard level of skills and knowledge needed to perform the job. ESU members will become Certified Technical Investigators (CTI) through NATIA within 3 years of permanent assignment to the ESU. 5, Equipment This section establishes procedures defining requirements for the use of technical equipment assigned to the ESU. All equipment will be used in accordance with this directive and in compliance | with all applicable state and federal laws. The’ following information applies to all ESU equipment. ‘Any specific equipment considerations will be documented appropriately. A. Approval ! | 1. ESU equipment will not be used without prior approval of the ESU Sergeant. 2. lunit equipment willbe limited to us@ for official police business only. 3. Any request for ESU equipment willbe dociimented using the "Technical istance Request Form.” B, Deployment 1, No member of the ESU shall install or deploy equipment they have not been trained on, oF testified on if such certif¢ation exists. The same shall apply for any equipment that requires licensing 2. ita court order is needed to utilize survellance equipment it will be the sole responsibility of ‘ihe case agent to obtain and present the court order prior to any instalation C. Operation 1. No member of the ESU shall use of operate equipment they have not been trained on, or certified on if such certification exists. The same shall apply for any equipment that requires licensing 2, ESU equipment will be operated accordingly to the manufactures specifications, Infomation contained 2 ts a Pa a gener pute Informationen tls page riny be exempt Irom pubic Inspection becouse it etal confidential sources, ent RecordsAlbuquerque Police Department Special Investigations Division Electronic Support Unit 3, The ESU will provide training in the use of surveillance equipment as necessary for case ‘agents as part of their investigation. This training may be conducted in person or provided in an electronic format. D, Data Retention 4. Data shall not be retained by the ESU beyond completion of an investigation, 2. Any date obtained during an investigation shall be considered confidential and will be handled in @ confidential manner. 3._ Itis the responsiblity of the case agent to save any data that is deemed to have evidentiary value to the appropriate medium for logging into evidence E. Inventory 1. ESU equipment inventory is maintained in te SID inventory management system by ESU Detectives. 2, Any new equipment will be properly inventoried and marked accordingly 3, Equipment will not be checked out without ensuring that the member checking out the equipment has been trained on the proper us@ of the equipment; 4, Members loaning equipment to other agencies will document the following information: a. Equipment loaned b. Contact name, agency, and phone number . Date of return (To be established on a case by case basis) F. Maintenance . % 4, SU equipment shall be maintained so that tin working coneltion. 2. SU equipment shall be maintained according tothe manufacture's recommendations 6. Training Training Is'an essential part of maintaining a successful electronic support unit. A. Department Training The ESU will conduct internal quarterly training in regards to department issued equipment. This will include inspections ofthe equipment as well as general maintenance. The ESU will ensure all personnel qualified and certified on ESU equipment have maintained training and proficiency to utilize ESU equipment. ~B. Yearly Maintenance Training Suan = ——— 1, SU members shall attend the NATIA yearly national training and technology exhibition conference to maintain training and learn about current and future technology. ~ Tie: tw evlrcanan Sanaive ro Infrmatian contained on this pga for sorn aw elarament se ony inthe couse of tei ffl dutesand sneer intendedvorsutable | pare gqt5 Tor teleese tothe general pubic. Information an his page may be exempt rom publ spet tmathods, procedures, and/or information Refer to WMSA 1978, Chapt 24 Bri, Section & because details confident sours, an Enforcement Records)US. Department of Justice Federal Bureau of Investigation Wattngion DE. 20835.000 November 20, 2014 IN TURN ana Robert J, Perty G s Chief Administrative Officer ra City of Albuquerque oO 1 Civic Plaza = Albuquerque, NM 87102 5 a Gordift B. Ede Jr Chief of Police Albuquerque Police Department 400 Roma NW Albuquerque, NM 87102 Re: Acquisition of Cell Site Simulator/Pen Register Equipment/Technology and Non-Disclosure Obligations Dear Chief Administrative Officer Perry and Chief of Police Eden: We have been notified of the Albuquerque Police Department's request for acquisition of certain cell site simulator/pen register equipment providing cellular device locating and identifying capability. Consistent with the condition on the equipment authorization granted by the Federal Communications Commission, State and local law enforcement agencies must coordinate with the Federal Bureau of Investigation (FBI) to complete this non-disclosure agreement in order to acquire and use cell site simulator/pen register equipment/technology Law enforcement agencies rely on cellular device locating and identifying capability to help meet their law enforcement and public safety responsibilities. Disclosure of certain information about cell site simulator/pen register equipment and techniques to the public, such information referred to by the Federal Government as Law Enforcement Sensitive (LES), would REVISION: 2 Page 1 of 9 381448 SUS)allow adversaries of law enforcement (0 diminish or thwart law enforcement efforts, thereby enabling such adversaries to evade detection and circumvent the law, Disclosure of even minor details about this technology or its use may reveal more information than its apparent each detail may aid in piecing insignificance suggests because, much like a jigsaw pu: together other bits of information even when the individual piece is not of obvious importance in itself, Thus, disclosure of what appears to be innocuous information about cell site simulators would provide adversaries with critical information about the capabilities, limitations, and circumstances of their use, and would allow those adversaries to accumulate information and draw conclusions about the use and technical capabilities of the technology. In turn, this would provide thei the information necessary to develop defensive technology, modify their behaviors, and otherwise take countermeasures designed to thwart the use of this technology in order to evade detection by law enforcement and circumvent the law, Moreover, the same techniques, equipment, and tools used in criminal cases are often used in counterterrorism and counterintelligence investigations, Thus, compromise of the law enforcement community’s investigational equipment and methods in a criminal case or a public records disclosure could have a significant detrimental impact on the national security of the United States. Due to these concems, the FBI has consistently asserted that the details concerning the use, implementation and application of eal site simulator technology is both law enforcement sensitive and protected homeland security information, and any disclosure could easily impair the use of this important investigative method. In recognition of this vulnerability, the FBI has, asa matter of policy, protected this eategory of electronic surveillance equipment and technique from disclosure, directing its agents that while general facts that a surveillance ot location operation was conducted in connection with a specific case may be disclosed, neither details as to the equipment’s operation nor the tradecraft involved may be disclosed, See United States v. Rigmaiden, 845 F.Supp. 982 (D.Atiz, 2012); United States v. Garey, 2004 WL 2663023 (M.D.Ga, Nov. 15, 2004), ‘As mentioned earlier, any information concerning cell site simulator equipment or technology (including, but not limited to information about the operation of the equipment or technology itself, limitations or capabilities of the equipment or technology, any training REVISION: 2 Page 2 0f 9materials concerning the capabilities or technology, or tradecraft required to operate the equipment) authorized by the FBI to be provided to your agency is considered protected homeland security information under the Homeland Security Act (“HSA”). Under 6 U.S.C. § 482(), homelanel security information “obtained by a State or local government from a Federal ageney under this section shall remain under the control of the Federal agency, and a State or local law authorizing or requiring such government to disclose information shall not apply to such information.” The HSA defines “homeland security information” as information that relates to the ability to prevent, interdict, or disrupt terrorist activity; information that would improve the identification or investigation of a suspected Cerrorist or terrorist organization; or information that would improve the response to a terrorist act, See 6 U.S.C, §§ 482((1\(B)-(D). Cell site simulator technology meets all three criteria. Accordingly, by signing this agreement, ‘your ageney agrees and understands that disclosure of protected homeland security information is specifically prohibited under Federal lav, and that this law éxpressly preempts state and local disclosure laws under the Supremacy Clause (Article VI, clause 2) of the United States Constitution. See, e.g. Lorillard Tobacco Co. y. Reilly, $33 U.S. 525, 541 (2001) (as a general principle, Federal law preempts State law where Congress has said so explicitly) Finally, by entering into this agreement, you acknowledge that you understand cell site simulator technology is a regulated defense article on the United States Munitions List (“USML"). See 22 C.F.R. § 121,1(b). As such, technical details concerning this technology are subject to the non-disclosure provisions of the Intemational Traffic In Arms Regulations (ITAR”), 22 CFR, Parts 120-130. ‘The [TAR implements the Arms Export Control Act, 22 U.S.C. § 2778, and Executive Order 13,637, which control the export and import of defense- related articles and services listed on the USML, Because this equipment is explicitly governed by the ITAR, 22 CFR. § 123.1 requires anyone to obtain a license from the Department of State prior to making an export. Notably, technical information does not have to leave the borders of the United States to be deemed an export subject to the regulation. See 22 C.F.R.§ 120.17 (defining an export as the disclosure of technical data about a defense article to @ Foreign national, even while located in the United States). Consequently, if a Stete or local goverment disseminates any part of the technical information to an entity knowing that the entity intends to or is likely to publish or further disseminate the information in some fashion that would make it REVISION:2 Page 3 0f9accessible to non-U.S. citizens, or that the requesting entity employs or has any non-U.S. citizens Present at its offices, this could constitute a violation of the Arms Control Export Act. Unauthorized disclosure of !TAR-controlled information is a felony punishable by up to 20 years imprisonment and up to $1 million per occurrence, See 22 C.F.R, Part 127. Accordingly, to preserve the continued efficacy of the capability for the Law Enforcement Community, the City of Albuquerque and Albuquerque Police Department agree to ‘the following conditions in connection with the acquisition and use of the cell site simulator/pen register equipment/technology: 1, The signing State or municipal government official effirms that he or she has the authority to lawfully obligate his or her State or municipality to the conditions of this agreement, Moreover, the official afficms that appropriate legal counsel has determined the nondisclosure obligations herein are defensible under State law, as possibly augutented by Federal statutory protections, such as might be necessary for public records access requests, and that the State or municipality will itself perform due diligence in meeting its nondisclosure obligations as and when necessary, 2. The signing lav enforcement agency official affirms thal he or she has the authority to lawfully obligate his or her agency and its personnel to the conditions of this agreement. Moreover, the official affirms that the law enforcement agency will itself perform due diligence in meeting its nondisclosure obligations as end when necessary, 3. The signing “law enforcement agency official affirms thal the appropriate chief prosecuting official(s) representing the jurisdiction(s) of possible use of the agency's identifying and locating capability was_ (svete) notified of the law. enforcement agency's intended acquisition of the equipment/technology and he or she _cellular_devie (they) indicated an understanding that use of the capability in a specific prosecutorial Jurisdiction by the law enforcement egeney is conditioned on the chief prosecuting official's separate written non-disclosure agreement with the FBI (notification and request for the separate agreement to be made as indicated in condition 10. below). REVISION:2 Page 4 of 9Furthermore, the law enforcement agency official agrees that, after exhaustion of all other lawful means, including implementing advice and assistance from the FBI, the lav enforcement agency will, at the request of the FBI, seek dismissal of the case with the prosecutorial jurisdiction in lieu of using or providing, or allowing others to use or provide, any sensitive information concerning the éell site simulator/pen register equipment/technology in criminal litigation. 4, The signing law enforcement agency official affirms that the law enforcement agency has statutory authority to lawfully employ this technology and will do so only in support of public safety operations or criminal investigations within State or municipal jurisdictions that are also party to appropriate, related nondisclosure agreements with the FBI. Moreover, the law enforcement agency assumes responsibility for operating the equipment/technology in accordance with State and Federal Jaw and regulation and accepts sole liability for any violations thereof, irrespective of the Federal Bureau of Investigation approval, if any, for the acquisition of the equipmentitechnology. 5. The signing'law enforcement agency official affims that he or she understands and acknowledges that this equipment, under Federal law, functions as a pen register device as defined in 18 U.S.C. §3127(3), and that 18 U.S.C. §3121(@) prohibits any person, including lay enforcement, from operating a pen register device without first obtaining a court order, or having emergency pen register authority under either State or Federal law, as applicable. ‘The signing law enforcement agency official agrees that he or she will not permit the operation of the device without having a court-issued pen register order or emergency pen register authority as outlined in Federal or State law, 6. The signing law enforcement agency official affirms that he or she understands that he or she is prohibited by Federal law ftom intercepting the content of any communications ‘with a pen register deviee, and that he or she must use technology reasonably aveileble to the agency to restrict the equipment to recording or decoding electronic or other impulse to the dialing, routing, addressing and signaling information utilized in the processing and transmitting of wire or electronic communications. See 18 U.S.C. §3121(©). REVISION:2 Page S of 9REVISION: 2 7. ‘The signing law enforcement agency official affirms that operators of the equipment meet the operator training standards, identified separately by the FBI, before operating the equipment, are certified by their agency to conduct operations, are notified of the conditions of this agrecment, and are legally bound to this agreement by virtue of their employment or through an internal written contract with the agency or State or municipal government. 8. The State or municipal government and/or law enforcement agency may, without first obtaining prior approval from the FBI, confirm or disclose in public for official business only, including for the purpose of obtaining relevant legal authority, the following: 1) the agency has coll site simulator/pen register equipment (without disclosing make and model) that provides the capability to locate or identify a cellular device, 2) a description of the legal authority relied upon for using the capability, 3) a description not containing LES information (sce conditions 9. and 10. below) of agency policies or practices that ensure legal compliance and protection of third party privacy rights, 4) the fact that the capability might cause temporary disruption of service for certain cellular devices in the operating area, 5) that the equipment was used to determine general location information about the target cellular device, and 6), that the capability is a sensitive investigative technique so further details ate protected and will not be publicly disclosed or confirmed. Note: The preceding provisions shall be narrowly and strictly construed, Any questions rogarding interpretation or scope of these provisions must be addressed with the FBI prior to disclosure, 9, Except for the strictly constructed permission in condition 8, above or for necessary deliberations between relevant officials necessary for coordi agreement, criminal or civil litigation discovery considerations, or public records access request processing, in which the exercise of due diligence to protect LES information and timely notice to the FBI pursuant to this agreement is presumed, the State or muinicipal government and law enforcement agency will not, absent written FBI approval, distribute, disseminate, disclose, or otherwise confirm any LES information, as determined by the Page 6 of 9FBI, concerning the cell site simulator/pen register equipment/technology to the public, including to eny non-Jaw enforcement individuals or agencies not otherwise part of this agreement, These restrictions include, but are not limited (0, tradecraft, technical details, fimetional limitations or vulnerabilities, manufacturer, model name, hardware, software, operating manuals, related technical documentation (including techiical/engineering descriptions and capabilities), line isem costs, or related entries in acquisition, funding, grant, or procurement documents, such documents often being susceptible to public disclosure by State or municipal financial authorities. 10, The signing State or municipal government officiel and the signing Jaw enforcement agency official affirm on behalf of their respective organizations that questions about or determinations of what constitutes LES or protected homeland security information will be deferred to the FBI. If the State or nunicipal government or law enforcement agency receives a request or order to disclose any information about the cell site simulator equipment/technology, or learns of such anticipated activity, an appropriate official will immediately notify the FBI in order to allow suflicient time for the FBI to assist in protecting the equipment/technology. REVISION:2 Al notifications or inquiries regatding this agreement and the subject capability shall be directed to the attention of: Unit Chief Tracking Technology Unit Operational Technology Division Federal Bureau of Investigation __ Engineering Research Facility Building 27958A, Quantico, Virginia 22135 ‘Telephone (703) 985-6840 Page 7 of 911, The signing law enforcement official understands and acknowledges that his or her approval to acquire and use the cell site simulator is expressly conditioned on agency execution of and adherence to this non-disclosure agreement with the FBI. In the event that the FBI determines the ageney is failing to abide by the conditions in this agreement, the FBI may notify the vendor/manufacturer to discontinue services for, or disable, the agency's cell site simulator/pen register equipment, 12, Once signed, the conditions of this agreement remain in effect until rescinded in writing by the FBI, except that the agreement must be re-zecomplished annually, If the State or municipal government, law enforcement agency, and prosecutor’s office do not all agree to the annual renewal, or the annual agreement period otherwise expires (one year from the acknowledged and agreed date) without a completed renewal, or any one of them do le by the conditions of the agreement, the FBI reserves the right to rescind its not abi endorsement of the law enforcement agency’s acquisition and use of the equipment and to take all lavvful action as indicated in condition 11, above, 13. The signing State or municipal government official and the signing law enforcement agency official affirm that any successors to their positions will be notified about this, agreement and of the requirement to adhere to the conditions herein to ensure the agency's continued use of cell site simulator/pen register equipmentitechnology. Similarly, the signing law enforcement ageney official affirms that any successor to the position of the chief prosecuting official will be notified of the separate prosecutorial non-disclosure agreement and of the requirement to adhere to that agreement in order to ensure the law enforcement agency’s continued use of eell site simulator/pen register equipment/technology. In any instance of succession in this context, the law enforcement _ agency official will notify the FBI as indicated in condition 10, above REVISION;2 Poge 8 of 9‘The acceptance of the above conditions shall be evidenced by the signatures below of authorized representatives of the City of Albuquerque and Albuquerque Police Department. Acknowledged and agreed to this, ue in one year. Sincerely, C feve bold) Stephen E, Richardson Assistant Director Operational Technology Division Federal Bureau of Investigation AP ay of. Vecembey 2014, soe oo Robert J. Perry Chief Administrative Officer City of Albuquerque Albuquerque, NM wha AL. Goldin B. Eden Chief of Police Albuquerque Police Department 400 Roma NW Albuquerque, NM 87102 REVISION:2 Renewal is Page 9 of 9U.S. Department of Justice Federal Bureau of Investigation ~ ‘Washington, D.C, 20535-0001 December 4, 2014 COPY Rei Acquistion of Cell Site SimulatorPen Register Equipment/Technology and Non-Disclosure Obligations Kari Brandenburg District Attorney. 2" Judicial District Attorney 520 Lomas NW Albuquerque, NM 87102 Dear Ms, Brandenburg: We have been notified ofthe Albuquerque Police Department's request for acquisition of certain cell site simuletor/pen register equipment providing cellular device locating and 'dentitying capability. Consistent with the condition onthe equipment authorization granted by the Federal Communications Commission, State and local law enforcement agencics must Coordinate with the Federal Bureau of Investigation (FBI) to complete this non-diselosure ‘areement in order acquire and use cell site simulaton/pen register equipmeat/technology, ‘aw enforcement agencies rely on cellular device locating and identifying eapebilty to help meet their law enforcement and public safety responsibilities, Disclosure of certain information about eel! site simuletorfpen register equipment and techniques to the public, such oreement Sensitive (LES), would information referred to by the Federal Government as Law allow adversaries of law enforcement to diminish ot thwart law enforcement efforts, thereby Gnebling such adversaries to evade deteetion and circumvent the aw. Disclosure of even minor Getails about this technology or its use may reveal more information than its apparent Much like a jigsaw puzzle, cach detail may aid in piccing insignificance suggests becau! {ogether other bits of information even when the individual piece is not of obvious importance in REVISION:2 Page 1 of 7 |itself, Thus, disclosure of what appears to be innocuous information about cell site simulators would provide adversaries with critical information about the capabilities, limitations, and circumstances of their use, and would allow those adversaries to accumulate information and draw conclusions about the use and technical capabilites of the technology. In turn, this would provide them the information necessary to develop defensive technology, modify their behaviors, and otherwise take countermeasures designed ta thwart the use of this technology in order to evade detection by law enforcement and circumvent the law. Moreover, the same techniques, equipment, and tools used in criminal cases are often used in counterterrorism and eounterintelligence investigations, Thus, compromise of the law enforcement community's investigational equipment and methods in a criminal case or a public records disclosure could have a significant detrimental impact on the national security of the United States. Due to these concerns, the FBI has consistently asserted that the details concerning the use, implementation and application of cell site simulator technology is both law enforcement sensitive and protected homeland security information, and any disclosure could easily impair the use of this important investigative method, In recognition of this vulnerability, the FBI has, as 2 matter of policy, protected this category of electronic surveillance equipment and technique from disclosure, directing its agents that while general facts that a surveillance or location operation was conducted in connection with a specific case may be disclosed, neither details as to the equipment's operation nor the tradeeraft involved may be disclosed. See United States v. Rigmaiden, 845 F.Supp. 982 (D.Ariz. 2012); United Stares v. Garey, 2004 WL 2663023 (M.D.Ga. Noy. 15, 2004), As mentioned earlier, any information concerning cell site simulator equipment or /+ technology (including, but not limited to information about the operation of the equipment or technology itself, limi eck materials concerning the capabilities or technology, or tradecraft required to operate the equipment) authorized by the FBI to be provided to a state law enforcement agency is considered protected homeland security information under the Homeland Security Act ("HSA"). Under 6 U.S.C. § 482(@), homeland security information “obtained by a State or local government from a zi Federal agency under this section shall remain under the control of the Federal agency, and a REVISION: 2 Page 20f7State or local lasy authorizing or requiring such government to disclose information shall not. ¢ . apply to such information.” The HSA defines “homeland security information” as information \ that relates to the ability to prevent, interdict, or disrupt terrorist activity; information that would improve the identification or investigation of a suspected terrorist or terrorist organization; or information that would improve the response to a terrorist act. See 6 U.S.C, §§ 482(A(1)(B)-(D). { Cell site simulator technology meets all three criteria. Accordingly, by signing this agreement, 5 = reempls staté and local ‘V your agency agrees and understands that disclosuze of protected homeland security information is specifically prohibited under Federal law, and that this law expressly se, (Article VI, clause 2) of the United States Constitution. See, ee., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2061) (as « general principle, Federal law preempts State law where Congress has said so explicitly) disclosure laws under the Supremacy Cl Finally, by entering into this agreement, you acknowledge that you understand cell site simulator technology is a regulated defense article on the United States Munitions List ('USML"), See 22 C.F.R, § 121.1(b). As such, technical details concering this technology are subject to the non-disclosure provisions of the Intemational Traffic In Arms Regulations CITAR"), 22 CR, Parts 120-130, ‘The ITAR implements the Arms Export Control Act, 22 US.C. § 2778, and related articles and services listed on the USML. Because this equipment is explicitly governed by the ITAR, 22 C.AR. § [23.1 requires anyone to obiain a license from the Department of State xecutive Order 13,637, which control the export and impott of defense- prior (o making an export. Notably, technical information does not have to leave the borders of the United States to be deemed an export subject to the regulation, See 22 CPR. § 120.17 (defining an export as the disclosuré of technical data about a defense article to a foreign national, even while located in the United States). Consequently, if a State or local govemment disseminates any part of the technical information to an entity knowing that the entity intends to or is likely to publish or further disseminate the information in some fashion that would make it accessible to non-US. citizens, or that the requesting entity employs or has any non-U.S. citizens present at its offices, this could constitute a violation of the Arms Control Export Act. Unauthorized disclosure of ITAR-controlled information is a felony punishable by up to 20 years imprisonment and up to $1 million per oceurrence, See 22 CFR, Part 127, REVISION: 2 Page 30f7Accordingly, to preserve the continued efficacy of the capability for the Law , Enforcement Community, the 2" Judicial District Attomey agrees to the following conditions in connection with the Albuquerque Police Department's acquisition and use of the cell site simulator/pen register equipment/technology: REVISION: 2 The signing chief prosecuting official (CPO) affirms that he or she has the authority to lawfully obligate his of her agency to the conditions of this agreement. Moreover, the official affirms that appropriate legal counsel has determined the nondisclosure obligations herein ate defensible under Siate lav, as possibly augmented by Federal slatutory protections, such as might be necessary for public records access requests, and that the agency will itself perform due diligence in meeting ils nondisclosure obligations as and when necessary. The signing CPO affirms that the above-named law enforcement agency’s acquisition and use of cellular device identifying and locating capability is conditioned on this separate written non-disclosure agreement with the FBI. Furthermore, the CPO agrees that, after exhaustion of all other lawful means, including implementing advice and assistance from the FBI, the prosecuting agency will, at the request of the FBI, seek dismissal of the case in lieu of using or providing, or allowing others to use or provide, any sensilive information conceming the cell site simulator/pen register equipment/technology in criminal litigation, The signing CPO affirms that the above-named law enforcement agency has statutory authority to lawfully employ this technology in support of public safety operations or criminal investigations. ‘The signing CPO affirms that he or she understands and acknowledges that this equipment, under Federal law, functions as a pen register device as defined in 18 U.S.C, §3127(3), and that 18 U.S.C. §3121(a) prohibits any person, including law enforcement, from operating a pen register device without fisst obtaining court order, or having emergency pen register authority under either State or Federal law, as applicable. Poge 4 of 75. The CPO’s agency may, without first obtaining prior approval from the FBI, confirm or | jal business only, including for the purpose of obtaining disclose in public for offi relevant legal authority, the following: 1) the above-named law enforcement agency has cell site simulator/pen register equipment (\without disclosing make and model) that provides the capability to Locate or identify « cellular device, 2) a description of the legal | authority relied upon for using the capability, 3) a description not containing LES i information (see conditions 6. and 7. below) of the above-named law enforcement agency's policies or practices that ensure legal compliance and protection of third party privacy rights, 4) the fact that the capability might cause temporary disruption of service | for certain cellular devices in the operating area, 5) that the equipment was used to | determine general location information about the target cellular device, and 6) that the capability is a sensitive investigative technique so further details are protected and will not be publicly disclosed or confirmed, Note: The preceding provisions shall be narrowly and strictly construed. Any questions regarding interpretation or scope of these provisions must be addressed with the FBI prior to disclosure. 6. Except for the strictly constructed permission in condition 5, above or for necessary deliberations between relevant officials necessary for coordination of this nondisclosure agreement, criminal or civil litigation discovery considerations, or public records access in whieh the exercise of due diligence to protect LES information and request processin: timely notice to the FBI pursuant to this agreement is presumed, the prosecuting agency will not, absent written FBI approval, distribute, disseminate, disclose, or otherwise confirm any LES information, as determined by the FBI, concerning the cell site simulatorfpen register equipmenvtechnology to the public, including to any non-lav enforcement individuals or agencies not otherwise part of this agreement. ‘These restrictions include, but are not limited to, tradecraft, technical details, functional limitations or vulnerabilities, manufacturer, model name, hardware, software, operating manuals, related technical documentation (including technical/engineering descriptions and capabilities), line item costs, or related entries in‘acquisition, funding, grant, or REVISION: 2 Page 5 of7procurement documents, such documents often being susceptible to public disclosure by State or municipal financial authorities. 7. The signing CPO affirms on behalf of her or his agency that questions about or determinations of what constitutes LES ot protected homeland security information will be deferred to the FBI. If the prosecuting agency receives a request or order to disclose any information about the cell site simulator equipment/technology, or learns of such anticipated activity, an appropriate official will immediately notify the FBI in order to allow sufficient time for the FBI to assist in protecting the equipmentitechnology. All notifications or inquiries regarding this agreement and the subject capability shall be directed to the attention of: Unit Chief Tracking Technology Unit Operational Technology Division Federal Bureau of Investigation Engineering Research Facility Building 279584 Quantico, Virginia 22135 ‘Telephone (703) 985-6840 8. The signing CPO understands and acknowledges that the above-named law enforcement agency's approval to acquire and use the cell site simulator is expressly conditioned on all relevant parties’ execution of and adherence to this non-disclosure agreement with the FBI, In the event that the FBI determines the any party is failing to abide by the conditions in this agreement, the FBI may notify the vendor/manufacturer to discontinue services for, or disable, the agency's cell site simulator/pen register equipment. 9, Once signed, the conditions of this agreement remain in effect until rescinded in writing by the FBI, except that the agreement must be re-2ecomplished annually, If the State or REVISION: 2 Page 6 of 7municipal government, law enforcement agency, and prosecutor's office do not all agree to the annual renewal, or the annual agreement period otherwise expires (one year from the acknowledged and agreed date) withaut 4 completed renewal, or any one of them do not abide by the conditions of the agreement, the FBI reserves the right to rescind its endorsement of the law enforcement agency's acquisition and use of the ¢quipment and to take all lawful action as indicated in condition 8. above. 10. The CPO affirms that any successor to her or his position will be notified about this agreement and of the requirement to adhere to the conditions herein to ensure the above- named law enforcement agency’s continued use of cell site simulator/pen register equipmenvtechnology. In any instance of succession in this context, the CPO's agency will notify the FBI as indicated in condition 7. above. ‘The acceptance of the above conditions shall be evidenced by the signature below of the authorized representative of the 2™ Judicial District Attorney, Sincerely, hae Stephen E, Richardson Assistant Director Operational Technology Division Federal Bureau of Investigation of Acknowledged and agreed to this_23 "day of Paton bar +2014. Renewal is due in one year, ; ore Branden District Attorney \- OHS 2"? Judicial District Attorney Ibuquerque, NM REVISION: 2 Page 7 of 7HARRIS HARRIS GOVERNMENT COMMUNICATIONS SYSTEMS TERMS AND CONDITIONS OF LEASE FOR DOMESTIC WIRELESS EQUIPMENT, SOFTWARE, AND SERVICES THIS LEASE (Lease) fs made and by and. belween Heme TamaicaTOTS Sjeters, (Hars” oF “Lessor and the Cy of ‘Abuquerque, New Mexia (Company Name” r"U2ss2=") 4. Defiaons: In aden tothe tome defined elsewhere, the faitoonng tems used hela have he fling meanings! a.‘Equlpmont’ incudes but fe not tinted to hardware (ieluing rnponent), Sofware, fmyare and Servoes Schedules" aro tachments to tne Agreement 2. Schedules. The agresment Includes the floving schedules: a."Schedulo AY - Whe Hemized lstry of all Exuipment lvered wit he Lease Agresnet "Schedule B° the lem, payment echedue, and pricing for the Lease Agreement . "Schedale ©"- special proislors (i necessary) fo address coreamslenees outside ofthe stave Terms and Conditions for Lease 4, Restricted Use. Al Eauipment sold by Hants provies the Lessee wit » capably bas eststed and othertse eonted tuner epplcabe seaons of Unos States Code Ta 10. Use of Equpmert Is shicly govemed by applicable federal sale ond toca law essoriate with ebcttonic suvelfence. The Lessee’ ‘blgalin fo protec Equipment includes, bul net tne to, the frames of specie produce, pricing, technical ard performance Gata, The Lessee thal nol eiscose, csttbue, or dsseminale fry infrmalion regerding Lessoe's lease or use of Hanis ‘Equipment the pubicin any manner including bul notes ts in press roleses, in cout cocumonts andlor proceesings, Inemel or uring oder publ forums or proneedings “The Lestoe warrants that thas legal author t avy eriloy the Equipment and wil d so cnly in such a manner and for such purposes. The Lessee algo warrants that I has oblained the Feautite coordination fer the acquisiion and use of the Equipment wil the appropiate U.S, Goverment ogencios Fare aosutnes ro fbi fer any use, misueo or proper use of Ihe Equiprien end makes no raprescotations es to Equipment siti for any sj2ciis applcaon. Lessee shal nal vans, fel or eosign the Equipment endfor Sofware wthou the por vwrten consent of Harts. “a: Release of Information, The Lessee shall notin any cil ‘Or clminal sroceeding, use or provide any infomation Concerning aria Equipment beyend the eviéentiry eeu oblaied through the use of Equipment witout the flor wien consent of Hers. Tho Lessee shal notfy Haws fit receves a requast pursuan’ to the Freedom of Information fet (§ USC. section $52) or an tdivaent Shale or loc! lw, the chil efiminal discovery process, © other Judi, leglalve, or administrative process 10 iselose infornation regarcing Equipment and shall ot feleoee or cherwis prove any Information conceing tha Equipment without Hers ror wien consent Herne Corporstion {Lease Terms ~Seatembor 2013 Lose of Equipment. In the event thal any of the [Equpmant laaeed under hs Leaso is ost or stolen, Ine Lossae shal cenit the Haris Help Desk ot 1 8o0.308-5267 within 3 business days. Lessee shall prove the Pert Number and Sefal Number of tha EEquipmant and 2 eunmmary of facts surrounding the incon Fell to comply wth iis reglrement may reeul in Haris terminating this Lease for default oF trerising oer hls under applicable low, 4, Aovoplanes, This Lease Ib elective as of the de pected above. No moaltaton fo hs Lease shal be made Unde agreed tor wing by both Lessor and Less. &. Texes. In ation 10 the payments under Ns Lease, ‘Lessee egreee ta pay sh axes, os, a fing cosis elated to tne tse ofthe Equipment, even i ied eer the end ofthe torm of hs Lease or any Schedules. If Lecco is rauies to flo and pay any Ink, fae of lov dus fo Lessoo's use or lease of Equpment, Lessee agrees lo reimburse Lessor inmeditely. Lessor wl nolly Lessce of any tax or simi teeponsibity that Lessen is request fl and pay dec 12 the appropetaealector 6. Shipping and Dolivry. Urless others stad inthe Lease. the Lease pres in Schedule 8 inciods frelght charges. 17 Ttloana lak of Loss, ‘The Equipment i, and shal at all limes be and remain, the sole and exchsive property of Lessor, and the Lessee shall hava ro igh, il or intrest therein or thereto exch ae axprosly set forth ints Lease Fisk of loss for Equipment leasod under the Lease vill ess to Lessee upon reap of Equipment 1. Schedules: Delivary and Aeceptanes, 8. Each Sched incorporate by this Lease shall fovemel bythe tas an coclins of tis Lease, as wel 2° the individu tems and canons sot fot in such individual schedule The tenminalon of this Lease wal not affect any Schecula executes por to the eflecive date cl such ‘eimiraton ©. Tha Paes may modly the Sthodues 85 ecessary fo, for jslance, 264 equment or to upgrade euipent 4 Uvese spaciicaly rejected upon _ delivery, "Equipment shall be deemed accepted by Lessee. Payment Terms, Schedule lease payments (8s speed inthe Schedule B) i begin hry 20) Gays ale execution of Ins Agreament. Payinents wl be due in areas onthe etme fry of each subsecent monlh, unless otherse specie’ on Ihe apleeble Schedule, Lessce also agrees thal THIS IS AN UNCONDITIONAL, NONCANCELABLE LEASE FOR THE MINIMUM TERM INDICATED ON SCHEOULE 8 OF THIS LEASE, Al payments to Lessor are “et” ar ara no subject lo et of oc educton by Lessee