The Santa Clara County Board of Supervisors has halted a plan to approve the purchase of a cell-site simulator , better known as a stingray.

The secretive surveillance devices can be used to determine a phone’s location, but they can also intercept calls and text messages. During the act of locating a phone, stingrays also sweep up information about nearby phones—not just the target phone. Earlier this year, Ars reported on how the FBI is actively trying to "prevent disclosure" of how these devices are used in local jurisdictions across America.

The move, happening in one of the primary counties in Silicon Valley, marks an unusual occasion that a local government has turned away from federal funds that would be used to acquire such a device. The device was approved initially during a February 24, 2015 meeting, despite a testy exchange between the Santa Clara Sheriff's Office and Supervisor Joe Simitian, a former state senator with a penchant for an interest in privacy issues. Simitian's office didn't immediately respond to Ars' request for comment.

Staying mum

James Williams, the deputy county executive, wrote in a Tuesday letter to his boss Jeffrey Smith:

After negotiations regarding contract terms, including business and legal issues, the County and Harris have been unable to reach agreement on a contract for the purchase of the System. Accordingly, the System will not be purchased at this time.

Harris Corporation is the Florida-based defense contractor that is the manufacturer of the device produced under the StingRay trademark. As the dominant maker of cell-site simulators, stingray has also become the generic name for this class of devices. Both the FBI and the Harris Corporation have previously declined to answer Ars' specific questions.

Smith told Ars that Harris wanted to impose overly strict restrictions as to what could be disclosed through the public records process.

"What happened was, we were in negotiations with Harris, and we couldn't get them to agree to even the most basic criteria we have in terms of being responsive to public records requests," he said.

"After many hours of back and forth it became clear that they weren't going to consent to a contract in an attempt to keep everything secret and non-discoverable and that's not something we could live with as a public agency. The negotiations are going to be terminated and the grant money will go to other purposes."

He said that the FBI was not involved in the discussions, and that Santa Clara County did not even get to the stage of the onerous non-disclosure agreement along the lines of a previously published one revealed in a court case in Erie County, New York.

In that case, a rare unredacted form demonstrated the full extent of the FBI's attempt to quash public disclosure of stringray information. The most egregious example from the document showed that the FBI would prefer to drop a criminal case in order to protect secrecy surrounding the stingray.

In St. Louis, a defense lawyer who represented a woman who had pleaded guilty to being involved in a series of robberies recently told Ars that prosecutors dropped charges rather than expose the use of a stingray. Last year, prosecutors in Baltimore did the same thing during a robbery trial.

"The best I can get into is that [Harris has] been convinced by somebody, maybe by themselves, that federal law prohibits them saying anything to anybody about their technology unless that person has a badge or is a criminal investigation in the criminal justice system," Smith added.

"So if we're buying this as civilians we would have to guarantee that we would never tell anybody that it was being bought. It was a little on the silly side. They're claiming that everything is a trade secret, but the reality is that the public is quite well-aware that this is a wireless wiretapping and it's not a secret, I can't understand where they're coming from."

Bringing sunlight to the process

Civil liberties and legal experts hope that the newfound scrutiny that has come from various cities around the country, including Tacoma, Washington, and Erie County, New York, are beginning to reach those in government.

"With more scrutiny of these deals and the strings that are attached to them, I am hopeful that more counties will negotiate more aggressively," Brian Owsley, a former federal judge who is now a law professor at Indiana Tech, told Ars.

"As Harris Corporation is in the business of selling its products, if enough local law enforcement agencies object to the "standard’ agreement, then Harris Corporation may have to change its standard language."

Relatively little is known about how, exactly, stingrays, known more generically as cell-site simulators, are used by law enforcement agencies nationwide, although new documents have recently been released showing how they have been purchased and used in some limited instances. However, it has been well-established that cops have lied to courts about their use. Typically, police deploy them without first obtaining a search warrant.

A local privacy activist who has closely followed stingrays from nearby San Leandro, California, Mike Katz-Lacabe, told Ars this was the first time he had ever heard of a county resisting acquisition of a stingray.

"Much, if not all, of the credit goes to Supervisor Joe Simitian and his push for transparency," he told Ars by e-mail. "In addition, this is one of the few times that there has been a public discussion BEFORE the acquisition of a stingray. There were no public discussions in Oakland, San Jose, or San Francisco when each of those police departments acquired a stingray, and they may not have even appeared on an agenda of the respective City Councils."

"I hope that this is a sign that sunlight is finally piercing the veil of the secrecy surrounding the use of this equipment," he added. "Use of this equipment is specifically kept hidden from judicial authority and the courts under the terms of the non-disclosure agreement that police departments must sign before they can buy a Stingray. It is critical to our judicial system and our democracy that the public and our elected representatives be informed about the use of these devices so that we can have a discussion about their privacy implications and make informed decisions about policies for their use."

Smith, the county executive, for his part was surprised to learn that Santa Clara may be the first local entity to refuse Harris' demands.

"We're not focused on being the only one to do something, but we had to do what we thought was right in terms of negotiations," he added. "If it's the only time it's happened, I'm surprised."