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In a brief submitted to the Arizona Court of Appeals, an attorney for the city of Tucson argued that the release of documents detailing the use of "Stingray" cellphone surveillance equipment by the Tucson Police Department would compromise its use in investigations.

The 38-page brief was submitted Friday in response to a June appeal by the American Civil Liberties Union of Arizona over last year’s decision by a Pima County Superior Court judge, who ruled that the city could keep some documents secret.

In the brief, assistant city attorney Dennis McLaughlin wrote that release of the documents would "not be in the best interest of the state and would be contrary to federal confidentiality requirements.”

While the documents are a public record, McLaughlin wrote there are “long and well-recognized exceptions to this public right of inspection of records” and he praised December's decision by Judge Douglas Metcalf, who ruled that releasing training manuals, quick reference sheets, and other materials requested by a freelance reporter would "compromise sensitive law enforcement techniques," allowing criminals to understand how local and federal law enforcement agencies use the equipment.

The documents describe the use of devices that mimic a cellphone tower, tricking phones within a specific area to switch to the fake network and transmitting their location. Some versions of the device can also capture voice and data transmissions.

Marketed as "Stingray" or "Stingray II" 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. Since 2008, these devices have been used in cases by local law enforcement agencies in Florida, California and Arizona.

Other versions exist and are marketed under different names, including Hailstorm and Kingfish.

Research by the ACLU shows that at least 53 agencies in 21 different states are known to use the technology, including a half-dozen federal law enforcement agencies, and the Department of Defense.

According to the brief, the city acquired one of the devices to assist in kidnapping and abduction cases, and used the device in at least five cases without a warrant. During the trial, the city providing case evidence to the judge for review, but held one case back because it remains an ongoing investigation.

The city, McLaughlin wrote, no longer has the device.

The lawsuit began in 2013 when Mohammad “Beau” Hodai, an investigative reporter with D.B.A. Press, requested a range of documents relating to the surveillance gear.

After several requests, TPD responded 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 Florida-based Harris Corp.

Hodai and the ACLU sued for the remaining documents based on Arizona law, which holds that all government records are by default mandated to be available to the public, with only a few narrow exemptions.

In its appeal, the ACLU argued that Tucson police ignored state law by refusing to release the documents “promptly” and doing so only when prompted by a lawsuit more than nine months later, and asked for the court to require the city of Tucson to cover court costs and to provide all the requested documents.

The trial court erred, the ACLU wrote, by failing to hold the city accountable for not responding to second and third requests by Hodai until the lawsuit was filed. "Such inattentiveness is not prompt by any standard.”

The ACLU also argued that Arizona law requires the city to release documents even when the release could be considered burdensome, or because the documents would not be reviewed.

Hodai was entitled to a “search reasonably calculated to uncover all relevant documents” and did not expect the city to “comb through every document in its possession.”

However, McLaughlin referred to an affidavit by Lt. Kevin Hall, who was responsible for the use of the equipment at TPD.

According to Hall, as a matter of TPD practice, police officers would not distinguish this type of surveillance in their reports. There was no way, McLaughlin wrote, "for TPD to do any automated word search for instances in which this technology may have been utilized, as it is not distinguished from any other type of surveillance means."

The ACLU disagreed with this assessment arguing that the police department had refused to release audio recordings and photographs connected to the investigations using Stingray and failed to "adequately search" for warrants related to the use of cell-site simulator equipment.

In its searches, the city did locate additional records pertaining to the technology that included a PowerPoint training presentation, an operational manual created by Harris Corporation, three quick reference guides and a blank form for a request to use the technology.

However, the city refused to provided those documents after discussing their release with the FBI.

In a sworn statement provided during trial, Bradley Morrison, chief of the FBI’s Tracking Technology Unit, wrote that the disclosure of even minor details of device could give criminals and foreign powers important information on the capabilities and limitations of Stingray.

"Much like a jigsaw puzzle, each detail may aid in piecing together other bits of information, even when the individual piece is not of importance itself,” Morrison wrote.

Metcalf agreed, saying the city's interest in withholding the documents was compelling.

"These records concern confidential investigative techniques that law enforcement uses to investigate violations of criminal law. Disclosure of these records may hinder law enforcement’s ability to use this technology in the future," he wrote.

Though Hodai and the ACLU have some “legitimate and important public purposes” in trying to understand "whether or not the public's privacy is compromised," Metcalf wrote that the documents he reviewed do not answer that question.

"Rather, the records show how to use the equipment," he said.

The use of location-based data from cellphones has faced increasing scrutiny by the courts in the last year. Last week, the 9th U.S. Circuit Court held that acquiring location data from cellphones without a warrant violated the 4th Amendment of the U.S. Constitution.

However, the 5th and 11th Circuit Courts of Appeals disagreed, noting in earlier decisions that location data is not protected, possibly setting up a challenge that could reach the U.S. Supreme Court next year.

And, in April the House of Representatives, led by California Rep. Darrell Issa, recently moved to limit federal spending on Stingray-like devices when used without warrants.

The city of Tucson purchased the equipment, as well as software and training, in 2010 for $408,500, according to a contract provided to TucsonSentinel.com last year.

TPD initially refused to provide the contract, stating that it was not releasable under terms of a non-disclosure agreement the city made with Harris.

The agreement, signed in June 2010, bared the department from discussing the use of Stingray or releasing information relating to the technology without permission. The agreement also required TPD to notify the company of any public records requests about the system.

In March, TPD initially refused to provide the contract but eventually the record was released.

The department refused to release the remaining documents requested by Hodai, citing a non-disclosure agreement between the city and Harris. The agreement, signed in June 2010, bars the department from discussing the use of Stingray or releasing information relating to the technology without permission. The agreement also requires TPD to notify the company of any public records request about the system.

Harris Corp. refused to comment on the use of Stingray by TPD and did not return multiple phone calls or respond to several emails.

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