Privacy Group Sues To Have Court Divulge Sheriff’s Cell Phone Diversion Warrants
By Gail Fry and Mark Gutglueck
Though privacy advocates have hailed what they said were marginal improvements in how the San Bernardino County Sheriff’s Department’s blanket interception of cell phone communications are being disclosed to an unsuspecting public that may otherwise have no inkling its private communications are being compromised, those reforms have not been comprehensive enough, those advocates maintain, and legal efforts to limit law enforcement’s reach into people’s lives are ongoing.
At issue is whether law enforcement agencies in general and the San Bernardino County Sheriff’s Department in particular, will be able to continue to engage in the wholesale vacuuming and interception of cell phone communications based on warrants and affidavits for their issuance that can be indefinitely withheld from disclosure.
The first round in the San Francisco-based Electronic Frontier Foundation’s effort to shed light on the monitoring of cell phone and smart device communications of both criminal suspects and members of the general public who are not known to be engaged in any criminal activity involved a lawsuit brought against the sheriff’s department which resulted in the plaintiff obtaining the basic identifying information pertaining to the warrants relating to the department’s electronic monitoring. That first lawsuit has now been dismissed. The second round is now under way, with the Electronic Frontier Foundation having filed suit against the San Bernardino County Superior Court, seeking to obtain the information contained in and upon which those warrants were issued, and challenging the court’s routine practice of sealing those search warrants, in virtually all cases indefinitely.
In 2012, the San Bernardino County Sheriff’s Department acquired a so-called Stingray, a cell-tower simulator, capable of receiving cell phone signals 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.
For the first 18 months the device was in its possession, the Sheriff’s Department made indiscriminate use of the Stingray, utilizing it over 295 times without seeking any sort of warrant whatsoever for its employment. When department officials were informed that data obtained through the collections was in admissible in a criminal proceeding, thereafter warrants were sought through the court as required by law.
In October 2015, the California Legislature passed and then-Governor Jerry Brown signed into law the California Electronic Communications Privacy Act, which was co-sponsored by the Electronic Frontier Foundation and authored by California State Senators Mark Leno and Joel Anderson. That legislation imposed comprehensive requirements aimed toward enhancing digital and electronic privacy, and required that law enforcement agencies first obtain a warrant before they accessed or took possession of virtually any type of digital data emanating from, produced by, stored or contained within a device or the servers providing such digital service.
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.
The privacy right to not be subjected to such tracking by a law enforcement agency 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 of an emergency in which public safety is at risk or at issue and law enforcement or government agents must take action to avert catastrophe, death or dire consequences.
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.
References to the San Bernardino County Sheriff’s Department’s Stingray both in the press and in other forms of public disclosure, including that the San Bernardino County Sheriff’s Department was using the simulator to target a far greater percentage of the county’s population than any other law enforcement agencies within the State of California using identical or similar devices to track the cell phone traffic of the populations within their respective jurisdictions, summoned the attention of the Electronic Frontier Foundation.
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 warrants reported to the state by the San Bernardino Sheriff’s Department as a consequence of the California Electronic Communications Privacy Act “were granted to investigate people whose identity was unknown to the department.”
In August 2018, 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 Sheriff’s Department and which were disclosed to the Department of Justice. 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 to 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 the 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 “that such records would be investigative records exempt from disclosure.”
On October 23, 2018, the Electronic Frontier Foundation filed a petition for a writ of mandate naming the County of San Bernardino and the San Bernardino County Sheriff to force disclosure with regard to what it said were the highest number of electronic warrants per resident in the state, 231 in 2018 alone, those being authorizations to use the Stingray in its possession. Those warrants, once granted, provided the department with clearance to use its cell-site simulator to gain access to cellphone communications of suspects, as well as sweep up the cellphone conversations of unsuspecting nearby cell phone users.
The Electronic Frontier Foundation’s petition for the writ of mandate sought to have the sheriff’s department disgorge information relating to its collection of data using court ordered electronic surveillance warrants, citing how the department spurned the foundation’s effort to track the same information using a California Public Records Act request.
The Electronic Frontier Foundation explained its public records request for the court case numbers associated with the electronic search warrants would enable “researchers to locate court records” to ensure whether law enforcement was “following the law and their own policies when obtaining warrants” and that the public records request was for “detailed information about each warrant” made public by the Department of Justice.
According to the Electronic Frontier Foundation, in September 2018 Electronic Frontier Foundation senior researcher Dave Maass reached out to San Bernardino County to inform their counsel that the California State Attorney General had “specifically informed him that he can obtain the search warrant court numbers,” and confirming the Electronic Frontier Foundation’s “request was narrow and contained granular detail on just six searches.”
In response to the Electronic Frontier Foundation’s petition for a writ of mandate filed with the San Bernardino Superior Court, Deputy San Bernardino County Counsel Miles Kowalski maintained to the court that the Electronic Frontier Foundation was seeking information that was rightfully being kept from the public, including the search warrant affidavits pertaining to ongoing investigations as well as the identities of confidential informants assisting the sheriff’s department in its investigations. After some degree of back-and-forth it was established that the Electronic Frontier Foundation was not seeking that information at all, but rather simply the numbers of the search warrants, which the sheriff’s department was refusing to disclose.
While the case against the sheriff’s department was ongoing, the Electronic Frontier Foundation did obtain the warrant numbers from the Sheriff’s Department, while encountering roadblock upon roadblock in its efforts to unlock the information relating to how the Stingray was being employed, against whom, and what collateral information the department was accumulating, including the whereabouts and communication contacts of tens of thousands of San Bernardino County residents who were and are being unknowingly caught up in the department’s vacuuming of cell phone data, and what the ultimate disposition of that data is, extending to whether the department is continuing to warehouse that information for possible future use or analysis.
On May 16, 2019, Electronic Frontier Foundation attorneys Michael T. Risher, Stephanie J. Lacambra and David Greene wrote a letter to the presiding judge of the San Bernardino County Superior Court, Judge John P. Vander Feer, in an effort to induce the court to unseal the search warrants and their affidavits to allow for public access to the information relating to the use of the cell phone simulators in the sheriff’s department’s possession in accordance with the California Electronic Communications Privacy Act.
“We are writing on behalf of the Electronic Frontier Foundation to ask that the court review and unseal 22 of its files that from what we can tell are indefinitely and completely sealed in violation of the Penal Code and Rule of Court 2.551,” Risher’s, Lacambra’s and Greenes’ letter states. “The San Bernardino County Sheriff’s Department has informed us that these files relate to search warrants authorizing electronic searches under Penal Code §1545.1 and pen register trap trace orders issued under Penal Code § 638.52. The statutory schemes governing these warrants and orders allow sealing only until they are executed or expire, respectively. Thus, these files should long ago have been unsealed under these provisions. Nevertheless, it appears that at the request of the sheriff’s department these court files remain completely sealed until further order of the court.”
A trap and trace device records or decodes electronic or other impulses which identify the numbers called or otherwise transmitted on the telephone line to which that device is dedicated. A pen register is similar to a trap and trace device. A trap and trace device shows what numbers had called a specific telephone, i.e., all incoming phone numbers.
“In the course of this litigation,” the letter continues, “the sheriff’s department has provided the search warrant numbers of these six warrants, but refuses to provide the warrants themselves, asserting among other things that it cannot do so because they have all been indefinitely sealed by this court. The Electronic Frontier Foundation has since requested 18 other warrants pertaining to electronic searches that the sheriff’s department obtained under similar circumstances from this court. The department has provided two of them but has refused to provide the rest, again on the grounds that they are sealed. The two warrants that it did provide both contain sealing requests that were denied by the issuing magistrates, warrant numbers VVSW18-1048 and VVSW18-1286. It thus appears that the sheriff’s department requests indefinite sealing orders as part of every application for a warrant or court order under these statutes.”
The letter to Judge Judge Vander Feer continues, “Although the sealing orders prevent us from reviewing information about the proffered justification for sealing or even if any such justification was asserted, we believe that these files should be unsealed in whole or in part. Pen register or trap and trace orders must be disclosed after they expire. Some of the files at issue apparently involve orders “authorizing or approving the installation and use of a pen register or trap and trace device which are methods of obtaining routing and dialing information for telephone calls and other electronic communications, respectively. These orders may be issued for periods of up to 60 days and extended for additional 60 day periods if there is continuing probable cause to do so. Until recently, a magistrate issuing these types of orders was required to direct that the order be sealed until otherwise ordered by the court. These indefinite sealing orders may well have violated the First Amendment.”
In their letter, Risher, Lacambra and Greene go on to state, “The legislature addressed this problem in 2016 by changing this provision so that it now requires that an order or extension order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that the order be sealed until the order including any extension expires. This legislative history and the language of the amended statute make it clear that these sealing orders must now expire when the underlying order does, particularly given the constitutional requirement that the statute be read so as to promote public access. But it appears that the warrant application forms submitted by the sheriff’s department fail to comply with this statutory change, though it may well be that that issuing magistrates in many of these cases were not aware of this statutory noncompliance. Law enforcement must provide notice to the target if known within 30 days of the expiration of the order. The issuing court may grant delays [to] this period under certain conditions. If there is no identified target, the agency must provide notice to the Department of Justice after the order and any authorized delay periods expire. The department must then post information about the order on its website within 90 days. Information about all of the orders in question appears on the department’s website, which shows that they have been executed and that any nondisclosure order has expired.”
Electronic Frontier Foundation attorneys Risher, Lacambra and Greene further argued in their letter to Judge Vander Feer, “Executed search warrants become public ten days after they are issued. Many of the orders in question authorize the use of a cell site simulator. 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. Law enforcement must obtain a special kind of search warrant under the California Electronic Communications Privacy Act before deploying a cell site simulator. Warrants issued under the California Electronic Communications Privacy Act must comply with specific particularity and notice requirements mandated by statute and aimed to improve public oversight and transparency. They must also comply with Penal Code §1534, which makes all warrants and related documents public 10 days after they are issued, assuming they have been executed.”
Penal Code §1534 states in part, “A search warrant shall be executed and returned within 10 days after date of issuance. The documents and records of the court relating to the warrant need not be open to the public until the execution and return of the warrant or the expiration of the 14-day period after issuance. Thereafter if the warrant has been executed, the documents and records shall be open to the public as a judicial record.”
Risher’s, Lacambra’s and Greene’s letter maintained, “As with pen registers, the police must provide information about these warrants to the target if known, after execution; if the target is unknown they must provide the information to the Department of Justice, which then posts it on its website. Although the police may apply to the court for authorization to delay notice for up to 90 days at a time, the fact that information about these warrants was posted on the Department of Justice website shows that any such periods have long since expired.”
In their letter, Risher, Lacambra and Greene called upon Judge Vander Feer to “examine these warrant files and unseal any parts of them that are not properly sealed. Since orders to seal court records implicate the public’s right of access under the First Amendment, they inherently are subject to ongoing judicial scrutiny, including at the trial court level. Thus, the ‘court on its own motion may move … to unseal a record’ ‘entirely or in part.’” The lawyers told the judge that “any party seeking to restrict access has a continuing burden to show that the materials currently meet the standards for sealing” and “The court may order the records unsealed entirely or in part. If redaction of a record is sufficient, sealing the entire record is improper.”
While conceding that “The court may partially seal an affidavit as necessary to protect the identity of a confidential informant, which is protected under Evidence Code 1041,” Risher, Lacambra and Greene insisted that “any portions of the sealed materials which if disclosed would not reveal or tend to reveal the informant’s identity must be made public.”
Controlling law and case precedent further requires disclosure of any parts of sealed materials that can be provided with appropriate redactions and which will not compromise the identity of an informant or informants, even pertaining to matters that have yet to result in a prosecution, according to Risher, Lacambra and Greene in their letter to Judge Vander Feer.
And while “affidavits and related materials may be sealed in whole or in part as necessary to protect a criminal defendant’s Sixth Amendment right to a fair trial and minor victims’ rights to privacy,” Risher, Lacambra and Greene told Judge Vander Feer, “The Court of Appeal held that under both the First Amendment and the Rules of Court the public’s right to access to these materials may be denied only if the court after notice and hearing makes four supported findings: i) there exists an overriding interest supporting closure and for sealing; ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and iv) there is no less restrictive means of achieving the overriding interest.”
Risher, Lacambra and Greene asserted, “these files should be completely or partially unsealed,” expressing their belief that “an examination of the materials will show that they should be unsealed under these rules at least in part because… information about these warrants and orders is available on the Department of Justice website indicates that any period for which the governing statutes authorize sealing has long since expired. These statutes therefore make them public unless some other statute or constitutional provision overrides that presumption. There can be no justification for sealing boilerplate parts of the files such as the outdated indefinite sealing orders or other parts containing general legal propositions unrelated to any specific case that were presented to the court. This information cannot be privileged, and because it does not relate to any individual case, cannot implicate any constitutional right. Moreover, there is no compelling interest that justifies sealing these materials. Both the Penal Code and the First Amendment therefore require that they be unsealed.”
Citing case law that evolved out of two prosecutions, People v. Hobbs in 1994 and People v. Jackson in 2005, Risher, Lacambra and Greene told Judge Vander Feer, “The court will have to determine whether any of the facts presented to support these delayed notification orders should continue to be sealed, but the remainder of these documents must be unsealed. We are not aware of any precedent authorizing a court to seal a warrant or judicial order as opposed to the supporting affidavit after it has expired or been executed.” The trio then reasoned that “this makes sense because it seems unlikely that a search warrant would itself contain much if any information that would meet the standards for sealing,” as “warrants do not generally contain the names of informants or the type of information that would jeopardize the right to a fair trial or constitute such a severe infringement on personal privacy so as to merit sealing.
“And there is an extremely significant countervailing public interest in government transparency and accountability by allowing the public to see how and why courts are authorizing the police to conduct digital searches,” Risher, Lacambra and Greene continued, adding, “Information that has already been disclosed cannot be sealed because there is no justification for sealing records that contain only facts already known or available to the public,” and they asserted, it “seems likely that much of the information in the sealed documents has been revealed in the course of criminal proceedings, either in discovery provided to the defense without any sort of protective order or in the preliminary hearings trials or other evidentiary hearings.
“Summary sealing of the entirety of the requested search warrants and supporting materials is not narrowly tailored to serve any legitimate government interest in sealing,” Risher, Lacambra and Greene further propounded, noting that the materials relating to one of the search warrants being withheld on the presumption they had been sealed by the court when that was not actually the case. “Some of the court’s files may be erroneously designated as sealed,” the letter states. “A boilerplate checkbox on the second page of one of the warrants that we did obtain from the sheriff’s department indicates that it is sealed until further order of the court even though the issuing magistrate specifically refused the requested sealing order. Because it appears that this application is a standard template and that the sheriff’s department always asks that these orders be sealed, this may lead to confusion and to the erroneous withholding from the public of files that a judge of this court has refused to seal.”
Risher, Lacambra and Greene asked that Judge Vander Feer review the 22 search warrants they referenced “to determine whether they are in fact sealed, unseal any files or parts of files that are not properly sealed under Rule of Court 2.551 (h) and the standards discussed above [and] take whatever steps are necessary to ensure that similar files both in the past and in the future are open to the public as required by law.”
On June 8, 2019, Judge Vander Feer responded to Risher, Lacambra and Greene. “I write today to inform you I do not intend to act on your request,” Judge Vander Feer wrote. There are two reasons. First, your request and contentions are before the court in a petition for writ of mandate, which proceeding appears to be approaching trial. Second, my position as presiding judge does not provide authority to second guess a trial judge or to sua sponte investigate our law enforcement and prosecutorial agencies. As the statutory law you discuss makes clear, it is the role of the judge presiding over the proceeding to limit the reach of each warrant.”
At an October 9, 2020, court hearing in electronic Frontier Foundation’s lawsuit against the Superior Court, lawyers for the foundation confirmed that the case against the sheriff’s department and the county was dismissed after the foundation was provided with the identification relating to the electronic warrants it had sought and was provided with its attorney fees.
San Bernardino County County Counsel Kowalski told the Sentinel, “During the course of the litigation, the county was able to identify the search warrant numbers and give them [the Electronic Frontier Foundation] those sealed search warrant numbers. The county agreed to pay for their costs during the course of the litigation, and they dismissed the case. So, they partially succeeded in that they were able to get the numbers of the search warrants. The search warrants themselves were sealed by the court. They are currently involved in another matter seeking to unseal the search warrants. That is separate from this litigation.”
The Electronic Frontier Foundation, however, did not consider the limited success it had achieved with regard to being able to identify the warrants to be sufficient, as its overriding goal had been to ensure that the sheriff’s office and the county were making disclosure of its electronic monitoring activity in compliance with the California Electronic Communications Privacy Act.
Thwarted at obtaining the full range of information with regard to the electronic warrants granted by the San Bernardino County Superior Court as a consequence of Judge Vander Feer’s decision not to release the sought-after documents specified in Risher’s, Lacambra’s and Greene’s May 16, 2019 letter, the Electronic Frontier Foundation on October 8, 2019 filed its verified petition to unseal court records, naming the San Bernardino Superior Court, seeking to have the court identify all of the electronic search warrants it has issued, unseal 12 search warrants authorizing electronic searches under Penal Code Section 1546.1 and 638.52 and other related documents, and calling upon it to disclose, in keeping with the California Electronic Communications Privacy Act, the First Amendment and Penal Code §1534 and consistent with the limitations in a defendant’s Sixth Amendment guarantee of a fair trial and the confidentiality protection due to a law enforcement informant under Evidence Code § 1041, information contained within the search warrants themselves and the affidavits prepared to convince a judge to issue them.
Named as real parties in interest in the suit are the San Bernardino County Sheriff’s Department and the San Bernardino County District Attorney’s Office.
In its verified petition to unseal the court records, the Electronic Frontier Foundation claims “these files should long ago have been unsealed, at least in part” under the laws, which “do not allow for indefinite sealing.” The Electronic Frontier Foundation asserts state law requires that “copies of the warrants” are to “be provided to the target of the search and made public after they are executed or expire” if the target is known.
“Although the court has some authority to issue orders delaying notification under certain conditions, it cannot do so indefinitely,” the Electronic Frontier Foundation reasons, citing public information about warrants issued in 2017 and 2018, posted on the website of the California Department of Justice, which it asserts demonstrates “any such orders have expired.”
Additionally, the Electronic Frontier Foundation cites California Rules of Court that “require that any continued sealing of the records, even in part, be justified by specific findings on the record that have not to date been made” and the public’s First Amendment Right of access to the records “also requires unsealing” by the court.
The Electronic Frontier Foundation maintains that “contrary to these provisions” the San Bernardino Superior Court has allowed these records to “remain completely sealed until further order of the court.”
In response to the Electronic Frontier Foundation’s verified petition to unseal the court records, a demurrer has been filed, which is an objection to the continuance of the suit, consisting of a defense asserting that even if all the factual allegations in the complaint are true, they are insufficient to establish a valid cause of action.
The matter is being heard by Judge Dwight Moore. Steve Pascover is representing the Superior Court. Deputy District Attorney Mark Vos and Deputy District Attorney Christine Masonek have represented the district attorney’s office in the matter. Representing the sheriff’s department is Deputy San Bernardino County Counsel Miles Kowalski.
Initially, the verified petition first sought the release of six warrants. In a letter dated January 24, 2020, the Electronic Freedom Foundations asked for six more warrants.
At an August 5, 2020, hearing the court confirmed that a stipulated agreement had been reached by the parties to have nine of the 12 warrants sought released from under seal reviewed by the office of San Bernardino County Counsel and the San Bernardino County District Attorney’s Office to determine if they have any objections to the release of the warrants, with any objections to be forwarded to the court.
Vos told the Sentinel, “The San Bernardino County District Attorney’s Office is opposed to the unsealing of the warrants to be handled in Electronic Frontier Foundation v. Superior Court, as there is a potential risk to the safety of certain parties named in these warrants. Regardless of whether a person is a victim, witness, or defendant, our office, along with law enforcement as a whole, has an obligation to do our best to ensure the safety of those who have matters handled in the criminal justice system.”
The court had scheduled for today, November 13, 2020, a hearing on the demurrer. Because, however, of a misunderstanding by which Rischer believed he could make his appearance telephonically from San Francisco and Judge Moore expected all of the legal representatives of the parties would be present in his courtroom, the hearing was postponed to January 15, 2021.