ACLU Suing Sacramento County Sheriff’s Department Over Stingray Phone-Tracking Records

The American Civil Liberties Union of California filed lawsuits Tuesday against the Sacramento County Sheriff’s Department and the Anaheim Police Department alleging they violated state law by not providing documents on their use of technology that may be used to intercept phone calls or text messages.

A Stingray device able to emulate a cell phone tower and triangulate the location of a phone.

The lawsuits were filed in state court by the ACLU’s Northern and Southern California affiliates. They say that the departments refused public records requests in May and July regarding their use of Stingrays, a suitcase-sized device tricks that cellphones in an area into electronically identifying themselves and transmitting data to police instead of the nearest phone company’s tower.

The departments cited rationales including the Homeland Security Act or trade-secret privilege to withhold records, the lawsuits said.

The Sacramento County Sheriff Scott Jones said Thursday that the ACLU lawsuit alleging he withheld records is meritless. Jones said he complied with California’s public records act and provided what he was legally required to disclose to the civil liberties group.

Sacramento County Sheriff’s Sgt. Lisa Bowman said she doesn’t believe the department has been served and cannot comment on pending litigation. Anaheim police did not immediately respond to a request for comment.

ACLU attorney Peter Bibring said the public needs to know about the technology’s use and what policies exist to protect their privacy.

“What protections are in place for privacy and civil liberties?” Bibring said. “That’s information the public should unquestionably have about how their police are using surveillance technologies.”

The small, suitcase-size device acts like a miniature cellphone tower and sends out a signal that tricks cellphones into transmitting back its identity and data. The technology not only captures information from a suspect’s phone but also from all cellphones in the area.

Sheriff Scott Jones says that he only withheld documents from the ACLU that the federal government requires be keep secret.

“I have made public statements in the past that this technology comes from the federal government with a strict confidentiality agreement, which precludes me from talking publicly about it or its capabilities,” Jones said.

In legal papers filed Tuesday, the ACLU described the StingRay as operating in “a sweeping dragnet manner”; it is not only able to capture the identity of the phone user but in some cases also the content of calls and messages, according to the lawsuits.

“StingRays are capable of invading the privacy of innocent Americans, so the public must be able to monitor how law enforcement agencies use them,” said Peter Bibring, director of police practices for the ACLU of California. “The police cannot adopt a new, invasive surveillance technology without any kind of public oversight or accountability.”

Anaheim police officials say they do not comment on pending litigation.

The devices have been used in one form or another since the 1990s. The secrecy surrounding them and what exactly they capture has led to litigation across the country by organizations and individuals seeking to learn more.

In prior cases, federal authorities have insisted that though the technology connects with phones, it is not used to gather calls or texts. Some officials have argued that law enforcement agencies don’t need a search warrant to use devices like the StingRay, though some departments say they do obtain warrants before using them.

As many as four dozen federal and local agencies have acknowledged using the devices, according to prior litigation and public records.

In the ACLU’s most recent litigation, the organization requested contracts or agreements by law enforcement with the Florida-based manufacturer of StingRays — Harris Corp. — as well as any judicial authorizations for the use of the StingRay, data-sharing policies and funding requests.

According to the ACLU’s legal papers, the Sacramento sheriff’s office initially denied access to documents before providing five redacted documents. The department  cited the Homeland Security Act and the Arms Export Control Act as reasons for withholding other records.

In Anaheim, the Police Department refused to produce those records, citing, among other things, the trade-secret privilege as support for its position that the documents requested by the ACLU are exempt from disclosure, according to the ACLU’s court filing.

Harris Corp. requires that law enforcement departments using the devices sign a nondisclosure agreement, according to other court records. Bibring said the Los Angeles Police Department also has not turned over records of its use of the device to the ACLU.

But in 2010, the department got the City Council to approve the purchase of a $347,000 StingRay using police foundation funds.

The Los Angeles County Sheriff’s Department turned over records to the ACLU showing that it possesses the StingRay device. A 2011 asset forfeiture memo that was heavily redacted said the “equipment’s capabilities are not for public knowledge and are protected under non-disclosure agreements” and federal law.

A sheriff’s memo from 2009 noted that the equipment was to be acquired for use by its homicide bureau.

In Florida, which has among the most open government disclosure requirements, public records obtained by the ACLU showed that the state spent more than $3 million on the devices and related equipment. The Tallahassee police detailed 250 investigations in which it had used StingRays.

The California First Amendment Coalition has filed legal papers against the San Diego police seeking similar records.