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Posted Mar 18, 2014, 1:12 am
Citing an agreement it signed with a technology company, the Tucson Police Department is refusing to release documents concerning the use of surveillance equipment used to track and collect data from cellphones.
The ACLU and an Arizona reporter have filed suit to force disclosure by TPD, citing state laws on public records.
The lawsuit, filed in Pima County Superior Court by freelance journalist Mohammad “Beau” Hodai, focuses the department’s use of portable surveillance gear that can mimic a cellphone tower and trick phones within a specific area to switch to a fake network, transmitting their location.
Called “Stingray” by the Florida-based Harris Corp., these devices have been used by the FBI since at least 1995, according to the Electronic Privacy Information Center. However, since 2008, these devices have been used in cases by local law enforcement agencies in Florida, California and Arizona.
Tucson purchased the equipment, as well as software and training, in 2010 for $408,500, according to a contract provided to the TucsonSentinel.com. Last week, TPD initially refused to provide the contract, stating that it was not releasable under the terms of a non-disclosure agreement with Harris.
In Arizona, all government records are by default mandated to be available to the public, with only a few narrow exemptions.
In October 2013, Hodai requested a wide-range of documents concerning the surveillance gear. After multiple requests, the department responded to the reporter with D.B.A Press with only four documents: a purchase agreement between the city and the company, a contract for training and equipment, a non-disclosure agreement, and an email conversation between the department and a representative from Harris.
However, the department is refusing to release the remaining documents, citing a non-disclosure agreement between the city and Harris. The June 2010 agreement bars the department from discussing the use of Stingray, requires TPD to notify Harris of any public records requests about the system, and bars the department from releasing information without permission from the tech company.
"The City of Tucson shall not discuss, publish, release or disclose any information pertaining to the Products covered under this NDA to any third party individual, corporation, or other entity, including any affiliated or unaffiliated State, County, City, Town or Village, or other governmental entity without the prior written consent of Harris," the non-disclosure agreement reads.
While the document has an exception for “Court ordered or other judicially mandated disclosures,” it also requires the department to “assist Harris” in any challenge to records the company “deems confidential.”
An email between Harris Corp. and TPD Sgt. Kevin Hall, included in court filings with the suit, shows that Harris asked the department to redact information based on two Freedom of Information Act exemptions: materials that could interfere with law enforcement under Exemption 7, and materials that could expose trade secrets under Exemption 4.
TPD spokesman Sgt. Chris Widmer said the department would not talk about the use of the Stingray system and said TPD would not comment on pending litigation.
Representatives of Harris Corp. were contacted multiple times by phone and by email, but have refused to respond.
According to the lawsuit, filed March 3 in Pima County Superior Court by the Arizona ACLU on Hodai's behalf, the police department has failed to produce public records required by Arizona law and has allowed Harris to “dictate the City of Tucson’s and TPD’s compliance with Arizona public records law in regards to products and services purchased from Harris Corporation.”
The police department should release the documents requested by Hodai despite the nondisclosure agreement, according to Dan Pochoda, legal director for the ACLU of Arizona, who has signed on to the case.
“State law should trump this agreement,” said Pochoda. “If they’re allowed to do this, it would eviscerate state law.”
The suit maintains:
Given the high costs in public monies expended for the equipment (records indicate TPD purchased at least $408,000 worth of merchandise from Harris Corporation in one instance (see Exhibit B)), the capabilities of the technology to invade the privacy of thousands of persons without their knowledge, and the likelihood that such invasion of privacy is currently taking place, the public has a clear interest in knowing if the City of Tucson and TPD are using the equipment in a legal and responsible manner that protects citizen privacy, provides continued and meaningful oversight, and guarantees the civil rights of Arizonans.
Stingray also poses a larger problem for constitutional rights, especially the Fourth Amendment, which limits searches by law enforcement.
The device, more formally known as an “cell site simulator,” masquerades as as part the cell network. Devices connected to the network will chirp back their own IMSI number, a serial number unique to each cellular device, similar to the VIN number in a car. This could be dozens or hundreds of devices in a given area.
At minimum, this will give officers a location, allowing them to know if a cellphone, and the person using it, is inside a house.
However, devices like Stingray can also gobble up text messages and Internet traffic. Some versions can even intercept phone calls, though many police departments would avoid this capability to avoid wiretapping statues.
This constitutes a search, argues Linda Lye, a staff attorney with the ACLU in Northern California, who has researched the use of Stingray-like devices in California.
“The government could determine if someone is at home and learn something about the house that they wouldn’t otherwise know without a warrant,” said Lye. “The Fourth Amendment was created to limit roving searches, requiring officers to provide particularity requirements to a search, including person and places to be searched.”
However, Stingray scoops up the information for people in the vicinity, intruding on the privacy of people beyond the original search, she said.
“There’s virtually no case law on the subject,” she said. “So, law enforcement is effectively writing their own rules with regard to this technology.”