SAN DIEGO CA - WHY P.D.�S TRACKER IS SO SECRET

OFF THE WIRE
By Lyndsay Winkley

Documents shed some light on how police use cellphone technology......

SAN DIEGO � The City Attorney�s Office released several documents Monday that shed some light on how police are using secretive and controversial cellphone tracking technology and why details about the device remain under wraps.

The documents indicate, among other things, that the Police Department signed a nondisclosure agreement with the FBI that prohibits it from releasing information about the technology, and that officers do obtain a warrant before using the device to track cellphone signals.

The documents also contend that anyone in an official capacity who releases information about the technology could be jailed for 20 years or fined $1 million.

The First Amendment Coalition, a civil-rights group, sued the San Diego Police Department last week to force the department to turn over more information about how it uses the Stingray device, which a heavily redacted invoice indicates it purchased or uses.

A Stingray masquerades as a cellphone tower, tricking all nearby cellphones to connect to it. Law enforcement agencies using the technology then have access to some information from the phones that connect en masse.

The Police Department has said information about Stingrays is �exempt from disclosure� and in a statement Wednesday, the City Attorney�s Office said the Department of Justice directed no information to be released on the topic.

On Monday, the City Attorney�s Office followed up by releasing several documents with permission from the federal agency.

Among them was a template for a news release titled �Statement on Cell Site Simulators,� presumably drafted or at least approved by the Department of Justice.

It says police departments have to get a warrant before using the device except in incidents that involve �exigent circumstances.� What qualifies as an exigent circumstance varies by state, but could include kidnapping, reports of a missing child, or evidence of a crime that could lead to imminent death or serious injuries.

The release also said:

� The technology doesn�t retain any information from random phones in the process of locating the phone being targeted.

� The device doesn�t feed into a database of any kind and the information garnered isn�t �kept or maintained.�

� Stingrays can�t listen in on calls or be used to read texts, and the device can�t access Internet-based data such as emails and social media posts.

Also included was an affidavit from FBI Supervisory Special Agent Bradley Morrison. In it, Morrison, the chief of the agency�s tracking technology unit, argued the secretive nature of the technology is what makes it effective. If details of how cell site simulators works were to be released, even minutely, he wrote, criminals and criminal enterprises could use that to defend themselves against the technology�s capabilities.

The affidavit also said that law enforcement agencies that use cell site simulators sign a nondisclosure agreement with the FBI, prohibiting them from saying anything about the technology.

Furthermore, because the technology is considered homeland security information, the FBI ultimately controls what can and cannot be released. According to the affidavit, �The FBI does not consent to release of the information, including technical specifications, technique limitations and vulnerabilities, and training and operational materials.� 

 Because the device is listed on the United States Munitions List, releasing information about the technology needs clearance from the Department of State. The affidavit also said information released to the media without permission could be considered a felony offense punishable by 20 years in jail or a fine of $1 million, because non-U.S. citizens might have access to the information.

Attorney Kelly Aviles, who is representing the First Amendment Coalition in its lawsuit against SDPD, said �vague allegations about threats, be it to national security or to officer safety, are insufficient to outweigh the public�s interest in the records.�

She also said she doesn�t believe two parties can enter into an agreement that would limit legal access to public records, citing California law that says a state or local agency may not allow another party to control the disclosure of information otherwise subject to release.

�They cannot waive the public�s right to know,� she said.

Recently, though, a judge in Arizona, did just that, the City Attorney�s Office reported Monday.

In a case similar to the First Amendment Coalition�s lawsuit, a freelance reporter requested information about the Stingray and Stingray II from the Tucson Police Department. The department disclosed some information, but said it couldn�t disclose the rest because of a nondisclosure agreement it had signed with the Florida-based Harris Corp., which manufactures the technology, and because it would �compromise sensitive law enforcement techniques.�

A Pima County Superior Court judge ruled Dec. 11 that if public records �might lead to substantial and irreparable private or public harm� or a �countervailing interest of confidentiality, privacy or the best interests of the state� exists, then records don�t have to be released to the public.

A court ruling from another state, however, is not binding in California.

lyndsay.winkley@utsandiego.com (619) 293-1546 Twitter: LAWinkley