At issue are extensive redactions made last year to a batch of documents provided to the American Civil Liberties Union.
(TNS) — The U.S. Justice Department has sided squarely with the Anaheim Police Department in an ongoing civil liberties legal battle over clandestine cellphone-tracking technology that is increasingly being deployed by law enforcement agencies.
Federal prosecutors argue in a recent court filing that police in Orange County’s largest city properly withheld key details about the equipment from the American Civil Liberties Union of Southern California. The group has sought public release of records on the devices in an 18-month-long case pending in Superior Court.
At issue are extensive redactions made last year to a batch of documents provided to the ACLU. Those records involve devices, initially developed for intelligence agencies, that imitate cellphone towers and can trick mobile phones into connecting to them instead of to the towers.
Law enforcement authorities say the technology — commonly called “stingrays,” a nod to StingRay, a device manufactured by the Harris Corp. — has played an essential role in tracking potential terrorists and investigating major crimes such as homicides and grand theft.
Critics say the technology can be extremely invasive and potentially abused by police. The devices are capable of sweeping up data from thousands of unwitting cellphone users who have no ties to investigations, privacy and civil liberties advocates say.
Anaheim police and the Justice Department say Anaheim’s tracker cannot intercept the content of calls or texts.
Use of the devices have has become more controversial as local law enforcement agencies have acquired and begun using the equipment, often without prior public discussion and authorization from elected officials.
In their court filing, Justice Department attorneys warned that releasing even minor details of the “confidential, highly sensitive information” sought by the ACLU “will jeopardize, if not vitiate” law enforcement’s ability to locate criminals and terrorists, and to rescue victims.
The ACLU countered in its legal response that the federal government’s argument “mischaracterizes the information at issue in order to exaggerate the consequences of disclosure.”
The Justice Department has a keen interest in the precedent the Anaheim case could set. Local law enforcement agencies seeking the surveillance equipment must sign a nondisclosure agreement with the FBI, the investigative branch of the Justice Department.
Among other things, the agreement requires Anaheim police to alert the Bureau FBI anytime police receive requests for such information about the devices “to allow sufficient time for the FBI to seek to prevent disclosure through appropriate channels,” records show. The city of Anaheim has acknowledged it followed that procedure in the ACLU case.
“The secrecy around stingrays is in part imposed by the FBI,” said Peter Bibring, a senior staff attorney at the ACLU of Southern California.
The ACLU initially requested information about the intercept devices in July 2014 under a California open-government law. The group sued in March 2015, alleging the Anaheim Police Department violated the law by failing to release documents.
After first denying they had responsive documents, Anaheim officials ultimately provided the ACLU 500-plus pages of records over several months.
The records showed that the department has had the devices since at least 2009 and that Anaheim serves as Orange County’s lead agency in deploying the secret technology.
The Register has reported that at least three other law enforcement agencies in the county have been beneficiaries of Anaheim’s stingray technology.
“As Orange County’s largest city and one of the world’s most visited places, we strive to balance security and openness,” said Anaheim city spokesman Mike Lyster said in a prepared statement.
“We believe we have done so in this case by providing hundreds of pages of documents with select redactions in the interest of keeping sensitive information from those who may want to (do) harm to our residents, businesses and visitors,” Lyster added.
ACLU officials have pressed for more public disclosure, saying records released thus far were improperly redacted and omitted a key four-page document used to obtain judicial authorization to deploy the cell-sweeping equipment.
The civil liberties group wants Superior Court Judge David Chaffee to compel Anaheim police to produce unaltered or less heavily redacted versions of the records previously released and a copy of the authorization template.
Chaffee is expected to rule on the matter next month.
The authorization template is “vital” because it would show precisely what Anaheim police have been telling judges before deploying the stingray equipment, said Adam Schwartz, a senior staff attorney at the Electronic Frontier Foundation, a digital-privacy rights group in San Francisco.
To date, such documents have been “treated as a closely held secret,” Schwartz said.
Anaheim city officials acknowledge that a judicial authorization template exists.
In a declaration filed in the ACLU case, an Anaheim officer said he regularly used the template “to obtain information that could be used in conjunction with CCS (cell-site simulator) equipment” when he was with the department’s crime task force and high-tech unit.
He says said the form does not “expressly address” the use of stingray devices and was intended to compel cellular-service carriers to either provide details about a specific cellphone account or make changes to an account in a way that would help with an investigation.
Anaheim officials argue that the template document is not responsive to the ACLU’s records request and “relates to confidential law-enforcement techniques, revealing intimate details of the Department’s cellular tracking practices and procedures,” court records show.
City officials also point to their nondisclosure agreement with the FBI.
The ACLU responded that “California courts have repeatedly held that the government cannot contract away the public’s constitutional right to obtain records under” the state public records act.
Schwartz, of the Electronic Frontier Foundation, agrees.
The public’s constitutional right to privacy trumps a law enforcement contract involving equipment made by a for-profit company, he said.
“It should be a no-brainer,” Schwartz said.
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