SAN JOSE (CN) — A senior staff attorney with the ACLU shed light on the closure of a longstanding FOIA case involving the government’s attempts to shield documents about its use of location-tracking “Stingray” devices in Northern California on Monday.
The ACLU of Northern California sued the Department of Justice in 2012, seeking more than 200 documents on federal, state and local law enforcement policies and procedures on cell-site simulators or digital analysis devices known as Stingray, Triggerfish, AmberJack, KingFish or Loggerhead.
U.S. Magistrate Judge Maria-Elena James dismissed the complaint with prejudice on June 23, after the ACLU and the Justice Department settled the final issue, attorney’s fees and costs.
The cell-site simulators, many of them made by Harris Corp., an Orlando defense contractor, simulate a cell phone tower, tricking cell phones into disconnecting from utility cell towers and connecting to the simulators.
Once connected, state and local agencies can use the signal to track people’s location through their cell phone signal; federal agencies can intercept phone calls, text messages and other information, San Leandro privacy rights advocate Mike Katz-Lacabe said.
These location-tracking devices obtain information “not just from particular devices targeted by the government, but also devices belonging to innocent third parties,” the ACLU says on its website. “By withholding information about this technology from courts in applications for electronic surveillance orders, the federal government is essentially seeking to write its own search warrants while engaging in a form of dragnet surveillance.”
Katz-Lacabe said one reason state and local agencies are reluctant to release their policies is because they sign nondisclosure agreements as a condition of getting the equipment.
“It makes it very clear about how law enforcement agencies should not reveal anything about this equipment to anybody,” Katz-Lacabe said. “There are specific paragraphs about how not to include information in criminal and civil discovery as well as the judiciary.”
Katz-Lacabe said he has unearthed language in nondisclosure agreements instructing agencies to drop cases if judges order them to disclose information about cell-site simulators.
Linda Lye, senior staff attorney with the ACLU of Northern California, said the government’s effort to shroud sophisticated surveillance technology strikes at the core of the case and why the documents should be disclosed.
“With the proliferation of this technology, greater transparency is needed so the public can weigh in alongside elected leaders and determine whether it is appropriate for communities,” Lye said.
Katz-Lacabe said agencies also should disclose whether they retain data they collect, and if so, the method of storage.
An equally important aspect of the issue is to give the judiciary branch a fundamental understanding of how the technologies work, so it can issue warrants in accordance with the law, Lye said.
“The courts need basic information on how it works, so they can ensure it comports with built-in limitations to the search warrant process,” Lye said.
The Department of Justice issued a policy memorandum in September 2015, which praised the technology’s ability to protect public safety, but acknowledged some constitutional limits.
Cell-site simulators can be “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,” the policy states. “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 Statute.”
Lye said the Department of Justice has acknowledged that a law enforcement agency must secure a warrant under the Wire Tap Act if it plans to listen to conversations or intercept text messages.
Nonetheless, information on how the devices intercept and manage data from innocent third parties, and which agencies have and use the devices, is required, Lye said.
“You have a lot of local law enforcement agencies buying this sophisticated surveillance technology without disclosure,” Lye said. “Because it is purchased via federal grants, it often bypasses the normal budget process.”
As a counterexample, Lye and Katz-Lacabe cited a recent ordinance passed by the Santa Clara County Board of Supervisors.
The Surveillance Tech Ordinance, approved in early June, stipulates that agencies must have a public policy on use of surveillance technologies before they acquire them, and must write an annual report divulging how the technologies were used.
Santa Clara Supervisor Joe Simitan told the East Bay Times that the ordinance was not intended to prohibit the use of technology such as cell-site simulators, but simply to enhance the transparency of their use.
For Katz-Lacabe, who works in computer security in Silicon Valley, this strikes at the core of the issue.
“I am interested in these technologies and they can be a good thing, a good tool,” he said. “But I am a strong open government advocate and how these technologies function, how departments use it, what for, how frequently they use it, these are thing that are worthy of public disclosure.”
“And they should be publicly disclosed,” he said.
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