The American Civil Liberties Union of Northern California (ACLU) commended the Sacramento County Sheriff’s Department (SCSD) for finally conjuring up a policy (pdf) on the Stingray surveillance equipment it has secretly deployed numerous times without court approval. The department said it was the first in the country.
But the ACLU didn’t like the policy, which was largely drawn up in response to a lawsuit (pdf) filed by the group in March. The main sticking point is the department does not explicitly say it will get a warrant to use the technology. But it also displays a hearty appetite for secrecy about Stingray and the operations.
The ACLU lawsuit wants to know out how the department is using technology that mimics cellphone towers to spy on people. SCSD, like law enforcement agencies across the country, is either bound by non-disclosure agreements with the manufacturer, or in tune with their spirit.
The ACLU is suing in Sacramento County Superior Court for documents that would reveal how much data is being scooped up, how it is being stored, how it is analyzed, who has access to it, what are the capabilities of the machine, who funded it, what did it cost. It has a similar suit against the Anaheim Police Department and the California First Amendment Coalition has a related suit against the San Diego Police Department.
Stingrays pretend to be cell towers and fool wireless phones into establishing a connection. Once connected, they can determine cell locations and download information of people who are not suspects in an investigation, including text messages, emails and documents, raising all sorts of privacy issues.
The federal government has given localities grant money for years to buy the equipment, sold primarily by Harris Corporation. District attorneys have dropped cases rather than disclose how they used Stingrays to gather information.
The ACLU listed a few things missing from the SCSD policy. It says it will seek court authorization to use Stingray, but doesn’t say it will get a warrant based on probable cause. Agencies have been found using Stingrays after filing a routine “track and trace” application with a court that doesn’t identify the technology or its capabilities.
The ACLU accused the department of trying to establish parallel paper trails to avoid legal challenges by promising not to use Stingray information as probably cause for a warrant in an investigation. The Sheriff would seek an independent reason for the warrant. That way evidence obtained through a warrantless Stingray operation could still be admissible in court.
It’s a technique developed and exploited by federal agencies, according to the ACLU. Earlier in the month, the U.S. Department of Justice (DOJ) responded to complaints from civil libertarians by requiring its employees to get warrants to use them in most cases. That includes the Federal Bureau of Investigation (FBI) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), but not the Department of Homeland Security (DHS). There is some question about loopholes for “exceptional circumstances.”
The SCSD policy says that all applications for “judicial authorization” will assure the court that Stingray data will be “immediately deleted at the conclusion of the use.” That is presumably after the police look at it and before anyone else sees it, and the policy doesn’t explain what “conclusion” means.
The policy also asks that the court seal all papers in support of an application for use, to prevent public inspection.
–Ken Broder
To Learn More:
Sheriff: We’ll Get Judicial Approval—Not A Warrant—When Using Stingray (by Cyrus Farivar, Ars Technica)
Sacramento County Sheriff’s Department Sued over “Stingray” Surveillance Technology (by Marissa Lang, Sacramento Bee)
Feds Now Need a Warrant to Use Stingrays, but Not Cops in California (by Ken Broder, AllGov California)
Sacramento Sheriff’s New StingRay Surveillance Policy Is Flawed (by Linda Lye, (American Civil Liberties Union of Northern California)