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.
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.