San Diego Police Department sued for withholding records about spy technology

An open government group has sued the San Diego Police Department for information about high-tech surveillance devices called Stingrays that indiscriminately gather large amounts of cellphone data in order to locate a target.

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With new technology, SDPD can potentially spy on thousands of San Diegans with little to no accountability. One group is suing to change that.
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The First Amendment Coalition, a nonprofit legal advocacy organization, filed a lawsuit Monday in San Diego Superior Court compelling the release of training materials, policy guidelines and judicial authorizations for the surveillance tool.

So far, the Police Department has refused to release any information, with the exception of a heavily redacted $33,000 purchase order made out to the company that manufactures the Stingray.

Peter Scheer, a First Amendment lawyer and executive director of the First Amendment Coalition, wants more.

“We think it’s important that the people of San Diego know as much as they reasonably can about how this technology is used in their city by their Police Department,” he said.

San Diego Police officials did not respond to emails or phone calls for comment.

What’s a Stingray?

Stingray devices, just like the infamous armored vehicle at the San Diego Unified School District or grenade launchers in Los Angeles, trickled down to local police departments from the military.

Christopher Soghoian, principal technologist at the American Civil Liberties Union and a nationally-recognized expert in government surveillance, told inewsource the equipment has been used to track and thwart terrorists in Yemen, Pakistan and Somalia, and President Barack Obama’s Secret Service detail uses them to protect him from IEDs and other explosive devices.

The technical name for the equipment is an IMSI catcher, short for International Mobile Subscriber Identity.

The Harris Corp., an international communications and IT company with millions in defense and intelligence contracts, manufactures IMSIs under the brand name Stingray.

Due to its popularity, Stingray has become the generic term for all IMSI catchers, which evolved from a device called a Triggerfish that came about in the mid 1990s. (Any die-hard fan of HBO’s The Wire will remember the Triggerfish as a key element in the Stringer Bell investigation)

By mimicking cellphone towers, Stingrays trick mobile phones in an area into transmitting identifying information, such as location, unique ID, and outgoing calls and texts.

Soghoian told inewsource the Stingray can be likened to the childhood game of Marco Polo.

“The Stingray says ‘Marco’ and all the phones in the vicinity respond with ‘Polo’,” he said.

The devices can be handheld, fixed atop police cars or even attached to planes. The range depends on the model and signal strength, and, according to Soghoian, can encompass several miles with signals that penetrate buildings.

“This device isn’t collecting information on people in one, two, three or four homes,” he said.  “We’re talking every home in a neighborhood.”

Because the San Diego Police Department’s documents are so heavily redacted, it isn’t clear which model the department purchased. It’s possible the police already had a Stingray and only paid Harris to upgrade the model. Soghoian said $33,000 doesn’t get you much when some units cost as much as $150,000.

At least 47 local, state and federal agencies in at least 19 states have them at their disposal. In California, according to news reports, agencies in Los Angeles, Oakland, Sacramento, San Bernardino, San Francisco and San Jose all use Stingrays.

Scheer said the First Amendment Coalition is focusing on the San Diego police for a few reasons. One, because a local news organization needed help obtaining the information, but also because Scheer had a hunch that any denial from the Police Department would be based on a secrecy agreement involving San Diego, the FBI and the Harris Corp.

According to a statement issued by the City Attorney’s office, the U.S. Department of Justice did direct the city not to disclose information about the device.

Scheer’s hunch was right.

“The FBI is very much in the picture,” he said.

The Good and the Bad

Scheer and Soghoian don’t doubt the efficacy of the device. It’s a powerful tool, one which any department would be happy to have in an investigation. And for the most part, it’s free to the local law enforcement agencies: the federal Department of Homeland Security pays for these devices through federal grants.

“DHS is basically writing checks for free Stingrays,” Soghoian said. “Why would you turn down free equipment and free training for your officers?”

According to documents obtained by the First Amendment Coalition and shared with inewsource, the Los Angeles Police Department used these devices 21 times in a four-month period in 2012 to aid in homicide, kidnapping, suicide, rape, human trafficking, robbery, fugitive and narcotic cases.

In the past 18 months, a host of spy technologies has come to light in the wake of the Edward Snowden revelations. Snowden, a former National Security Agency contractor who leaked classified information about government surveillance to the media in June 2013, spurred national debate over mass surveillance and government secrecy and forced the public to question the line between privacy and national defense.

Similar questions regarding the Stingray technology abound:

How does the San Diego Police Department gather the data? How often? What does it do with all those records after an investigation is complete? Which officers are allowed to use the technology, and what safeguards are in place to make sure they aren’t overstepping their authority — like a suspicious government employee spying on a partner or spouse?

Those questions are the crux of the First Amendment Coalition’s lawsuit.

“I just think they’re making a mistake by not trying to be as forthcoming as they can,” said Scheer about the San Diego police. “Yes, some information is sensitive. Yes, we don’t want to disclose a lot of details about some things which would enable bad guys to figure out how to evade detection.”

“But that doesn’t mean you can’t say anything,” he said.

The lack of information isn’t limited to just the public. Soghoian said law enforcement agencies have habitually sidestepped legislative oversight across the country in order to use the equipment covertly. Some legislators have held hearings to learn more about how Stingrays are used and under what circumstances.

“I’ve testified in Michigan and Texas in the past year,” he said, “where legislators were furious to learn that this was being used.”

“It’s one thing to keep the public in the dark,” he said, “but I think it’s a very different thing to keep our elected officials in the dark.”

Even judges who grant police departments the ability to use these devices sometimes don’t know or understand what they’re authorizing, Scheer and Soghoian said.

This past June, the ACLU discovered that the U.S. Marshals Service told a Florida police department to deliberately conceal the use of a Stingray in court documents.

Yet despite all the secrecy, last year the First Amendment Coalition was able to see what a boilerplate application for judicial authorization looked like, after receiving one from the Los Angeles police.

The word Stingray is nowhere to be found on the Police Department’s application. Instead, the department referred to its technology as a trap-and-trace device or a pen register — equipment that monitors only one phone line at a time. That’s very different, Scheer said, from Stingray equipment, which gathers thousands of phone records at a time.

“We were concerned,” Scheer said.

He believes that if judges were more aware of what they were signing off on, “they would want some representations from the police about, ‘Well if you’re going to collect all that data, what are you going to do with it? How long are you going to keep it? Why keep it at all?’”

A Developing Pattern

Now in two instances in less than six months, the San Diego Police Department has made it clear its policies and methods regarding surveillance tools lean heavily toward secrecy and in-house oversight, rather than disclosure and public discourse.

In mid-October, Police Chief Shelley Zimmerman spoke at a panel organized by the Society of Professional Journalists. The topic — body cameras on officers — had come about after a Voice of San Diego and KPBS investigation into the department’s alleged racial profiling practices.

The new cameras were a key part of changing public perception.

“It holds our officers accountable and holds the public accountable,” she told inewsource.

But when it came to releasing body camera footage to the public, Zimmerman said her department planned to withhold almost all of it.

“I don’t plan to release any of the video,” she said, “because it is considered evidence.”

This policy stood in stark contrast to the recommendations from the Police Executive Research Forum, a Washington, D.C.-based nonprofit police research and policy organization, which published a best-practices guide to body cameras in 2014 after surveying 500 law enforcement agencies nationwide and conducting interviews with police executives.

A summary of the best practices read:

“With certain limited exceptions that this publication will discuss, body-worn camera video footage should be made available to the public upon request—not only because the videos are public records but also because doing so enables police departments to demonstrate transparency and openness in their interactions with members of the community.”

Mickey Osterreicher, a lawyer and general counsel for the National Press Photographers Association, agreed. He told inewsource, “The national trend that is developing is for any video obtained by officers using body-worn cameras to be considered a public record and thus obtainable.”

He disagreed with the chief’s statement about footage as evidence.

“The chief’s statement that privacy for both officers and citizens who encounter them generally outweighs the public’s right to see footage is misguided,” he wrote, “because for footage shot in public, there is no reasonable expectation of privacy for either citizens or the officers.”

That last line, he said, “is the underlying premise that allows public photography and recording in the first place.”

While the San Diego Police Department’s policy of not disclosing body camera footage remains unchallenged on any legal level, it was made public.

About the Stingray, Scheer said, “I‘d like to see internal policies explaining how they decide when to use and when not to use, what safeguards are put in place to protect privacy interests.”

“It’s certainly possible to say something,” he said.

City Attorney Statement received Dec. 18: