Sufficient questions have emerged about the San Bernardino County Sheriff’s Department’s blanket interception of cell phone communications that an organization focused on privacy issues related to digital communications has sued the department in an effort to gain access to records about search warrants relating to the departments use of cell-site simulators.
Cell-cite simulators, also known as Stingrays, are highly invasive surveillance devices which locate and track cell phone users by replicating the reception capability of cell-phone towers. Stingrays actively receive all cell phone emanations in a targeted area, including those specifically sought by investigators as well as those of others using or simply carrying switched on cell phones within the range of the simulator who are not suspected of any criminal activity.
On October 23, the San Francsisco-based Electronic Frontier Foundation sued the San Bernardino County Sheriff’s Department in an effort to have that agency disgorge information relating to its collection of data using court ordered electronic surveillance warrants after the department spurned the foundation’s effort to track the same information using a California Public Records Act request.
The Electronic Frontier Foundation, a donor-supported, non-profit civil liberties organization dedicated to protecting and promoting fundamental liberties in the digital world, is represented by attorney Michael T. Risher in the lawsuit.
The Electronic Frontier Foundation in 2015 co-sponsored the California Electronic Communications Privacy Act, which was authored by California State Senators Mark Leno and Joel Anderson and passed by the California Legislature and signed into law in 2015. Under the provisions of the California Electronic Communications Privacy Act, in order for law enforcement agencies to access the digital records pertaining to the cell phone or internet activity of an individual or group of people in anything other than an emergency/life-and-death situation, police must first obtain a warrant to do so. Hand held communication devices such as smart phones and the current generation of even-less-sophisticated cell phones typically have a geographic position function which will allow a forensic analysis to ascertain the continuous geographic location of the individual in possession the device over the continuous span of time while the device is turned on.
That privacy right is legally suspended only in those circumstances where the police have obtained from the individual being tracked a waiver of his or her privacy rights or in the extraordinary circumstance in which public safety, law enforcement or government agents must take action in a dire emergency.
Another provision of the act is that government agencies are mandated to provide to the California Department of Justice information about warrants that don’t identify a specific target or in cases where they want to delay notifying the target. The Department of Justice on an ongoing basis must provide that information to the public.
An article that ran in the Palm Springs Desert Sun, which had as its basis an analysis of California Department of Justice data, revealed that on a per capita basis, San Bernardino County law enforcement agencies sought and were granted more electronic warrants than all other law enforcement agencies in the State of California. According to the article, 93 percent of the California Electronic Communications Privacy Act warrants reported to the state by the San Bernardino Sheriff’s Department “were granted to investigate people whose identity was unknown to the department.”
In August, the Electronic Frontier Foundation made a request pursuant to the California Public Records Act to obtain search warrant information for six specific searches that were made public by the DOJ. In the authorization requests for those six searches, the San Bernardino County Sheriff’s Department had misspelled the term simulator in seeking warrants to utilize “cell-site stimulators.”
In its request, the Electronic Frontier Foundation sought court case numbers associated with the search warrants in an effort to allow the foundation’s researchers to locate in the various court files the search warrant affidavits spelling out the grounds for granting the warrants and ascertain whether law enforcement agencies are complying with both the law and their own stated or written policies in obtaining the warrants. The request contained detailed information about each warrant, made public by the Department of Justice, such as the nature of the warrants, the precise start and end dates of the warrants and verbatim quotes about the grounds for each warrant. The request sought specific case numbers associated with the warrants so the Electronic Frontier Foundation could determine through court records, such as affidavits, whether the warrants were justified.
San Bernardino County denied the Electronic Frontier Foundation request, claiming it was “vague, overly broad,” and didn’t describe an “identifiable record.” The county also claimed that the material sought qualified as investigative records, and as such, are exempt from disclosure. In September Electronic Frontier Foundation Senior Investigative Researcher Dave Maass informed the county that the California Department of Justice had informed him he could gain access to the search warrant court numbers from San Bernardino County, given the narrow and precisely worded focus of the six lines of inquiry.
The county did not respond.
Maass said, “We are seeking search warrant records to explore first whether the California Electronic Communications Privacy Act is working and second whether law enforcement agencies are complying with the law’s warrant and transparency requirements,” said Maass. “The law is only as good as counties like San Bernardino’s compliance with its rules, which are intended to protect the highly personal and intensely private information contained on Californians’ digital devices. Our lawsuit aims to shine a light on police use of cell-site simulators. The California Electronic Communications Privacy Act was meant to provide the public with a check on law enforcement’s use of this highly intrusive tool.”
Sheriff John McMahon, in his official capacity, is named as a defendant in the suit.
According to the lawsuit, “Plaintiff Electronic Frontier Foundation requested copies of six of these search warrants that defendants obtained in 2017, along with their supporting affidavits. Each of these warrants authorized defendants’ personnel to use cell site simulator devices as part of a criminal investigation. These devices, commonly known as Stingrays (a brand name), masquerade as cell-phone towers and allow law enforcement to locate specific cell phones by diverting these phones’ signals to the simulator, rather than to the carrier’s real tower. They can also be used to determine the unique international mobile subscriber identifiers of unknown devices. The Legislature recognized that the use of these devices can have profound civil liberties implications. And as defendants’ own use policy explains, a cell site simulator collects identifying and location information and may cause a ‘temporary disruption of service’ not only of the target device, but of all other cell-phones within range. The Legislature has therefore imposed a number of limitations and transparency requirements on their use.”
The lawsuit continues, “In an attempt to learn about defendants’ use of these devices, the Electronic Frontier Foundation sent a request for records relating to six cell site simulator warrants that precisely identified each warrant using the information on the Department of Justice’s OpenJustice website, including the date range of the authorized search, the nature of the investigation, the items to be searched for, and the exact date and time defendants electronically provided information about them to the Department of Justice. Defendants refused to comply with the request, claiming that it failed to reasonably describe the records at issue and that the records are exempt from disclosure as records of an investigation under Government Code §6254(f).”
According to the suit, “Neither of these is a legitimate justification for failing to provide the records: The request more than reasonably described the target records. In fact, it uniquely identified the warrants in question, providing the exact time frame covered by the warrant, the exact date and time the defendants provided information about the warrants to the Department of Justice, and other identifying information. Defendants’ claim in this regard is particularly weak because their own policy – which state law requires them to adopt and make public – requires their personnel to obtain high-level approval for, and then maintain a log of, all warrants like those here at issue. This log must contain the dates that the cell site simulator was used, which would mirror or be contained within the time frame covered by the warrant, and so would allow defendants to easily identify and locate the requested warrants. Search warrants, which are issued by the court, are public records, as are the supporting affidavits. In fact, the California Department of Justice has informed the Electronic Frontier Foundation that it could, and should, obtain copies of warrants included in its website directly from the agency that obtained them. Although the statutory scheme allows the issuing court to seal this type of warrant for limited time periods under certain conditions, there is no indication that the requested warrants are sealed (Defendants do not suggest that they are, and they appear to claim that they cannot even identify the warrants at issue). The court should therefore order defendants to disclose the requested records under the Public Records Act.”
According to the lawsuit, “San Bernardino County’s law enforcement agencies were granted the most electronic warrants to search digital property per resident in the state, according to the data. The San Bernardino County Sheriff’s Department accounts for almost all of the electronic search warrants reported to the California Department of Justice for the county. And the department is carrying out the electronic searches at an increasing rate.”
The sheriff’s department has declined to comment on the suit.
–Mark Gutglueck