How sensitive are local cops when it comes to disclosing information about stingrays, the fake cell phone towers used to track targeted phones? Apparently, they're sensitive enough to involve the United States Marshals Service with an ongoing case in Florida.

After being informed of a straightforward public records request to learn more about the Sarasota Police Department's use of stingrays, the US Marshals suddenly moved the stack of paper records hundreds of miles away. It's a move that will frustrate ongoing efforts by the American Civil Liberties Union (ALCU) to access the documents in question.

Earlier this week, the ACLU asked a Florida court for an emergency motion (PDF) that would require the city to make its stingray records available. On Wednesday, we reported that the story of stingray use in a Tallahassee rape case only came out once testimony from a local police officer was unsealed. At the time, the detective said he would only testify about how the stingray was used if his testimony was not made public.

In that case, the assistant attorney general told the court that the Tallahassee Police Department was under a non-disclosure agreement—likely from the leading manufacturer, Harris Corporation—forbidding it from acknowledging the use of a stingray, never mind describing it in detail. The secrecy surrounding the device highlights some of the strange lengths that government agencies are willing to go to conceal information surrounding its use.

"Shocking and outrageous"

The case is just a few weeks old, and it began with a Sarasota man who serves as the vice president of the ACLU of Florida, Michael Barfield.

He e-mailed (PDF) a Sarasota city official on May 19, 2014, asking for, among other things, “any records made or received by [the Sarasota Police Department] related to the use of cell phone tracking equipment, including but not limited to, any device known as stingray or stingray II.” This was to include e-mail communications, purchase orders, financial transactions, records, lease agreements, and non-disclosure agreements, among other items.

Three days later, Barfield contacted Detective Michael Jackson of the SPD, the sole person at the agency tasked with maintaining stingray records. Jackson told Barfield that he did have sole possession of the records, and he scheduled an appointment for Barfield to inspect them at his office on May 27 at 2:30pm.

However, just hours before their scheduled meeting, Sarasota Assistant City Attorney Eric Werbeck sent Barfield an e-mail stating the city had been “instructed not to release the documents requested, as any ‘tap and trace’ orders kept by Special Deputy US Marshal Jackson pursuant to his duties with the Marshals Service belong to the Marshals Service.”

In other words, as the ACLU explained on Tuesday, the US Marshals Service had “deputized” Detective Jackson as one of their own, which somehow magically transferred ownership of such records to the agency.

As Werbeck wrote to Barfield (PDF) on May 30:

The City’s position is as discussed last night; the City never had custody of any orders, the US Marshal’s Service maintained custody of them. After our phone call last night, I learned that the Marshal’s Service had physically moved the subject record(s) from Sarasota to Tampa—though I am unaware of the location of any record(s) at this point. Regarding whether Special Deputy Jackson filed orders with the Clerk after being signed by a judge, he is the best person to answer that. I don’t know how many orders Special Deputy Jackson sought at the direction of the US Marshal’s Service, how many orders were signed, nor can I say whether a signing judge might have asked an assistant to file an original with the clerk of court and gave Deputy Jackson a copy, or filed it himself/herself.

Neither Werbeck, Jackson, nor two US Department of Justice officials included on Werbeck’s May 30 e-mail responded to an e-mail from Ars sent late Tuesday night. Lynzey Donahue, a spokesperson for the US Marshals Service, declined to comment on pending litigation. She also did not answer direct questions about whether this happened before in Sarasota.

The journalism organization MuckRock has already submitted an expedited Freedom of Information Act request to the US Marshals, asking for all correspondence pertaining to stingrays and the transfer of related documents between their officials, the Sarasota city attorney's office, and the Sarasota Police Department from March 1, 2014 through the present.

In a Tuesday blog post, ACLU attorney Nathan Freed Wessler called the Marshal’s actions highly irregular.

“We emphatically disagree, since the Sarasota detective created the applications, brought them to court, and retained the applications and orders in his files. Merely giving [Jackson] a second title (‘Special Deputy U.S. Marshal’) does not change these facts. But regardless, once the Sarasota Police Department received our records request, state law required them to hold onto the records for at least 30 days, to give us an opportunity to go to court and seek an order for release of the documents.”

In a Tuesday phone call with Ars, Wessler was even more baffled.

“I’ve never seen this kind of physical seizure of state public records by federal agents,” he said. “The fact that they deputized is not troublesome in and of itself, but then to turn that as an end run around state public records laws is shocking and outrageous. What we have seen around the country with stingrays is the federal government meddling with public records, even when that information is already public. There will be a hearing as soon as possible. It will be a day or two, but because it’s an emergency motion it should move pretty fast. We stand ready to get this enforced as fast as possible.”

Even a former judge says it's weird

The ACLU isn’t the only one mystified at the government’s behavior.

“I’ve never heard of such an argument before: that federal deputization of a local police officer transforms state records into federal ones,” Elizabeth Joh, a professor of criminal law at the University of California Davis, told Ars. “I’d expect a challenge to that one from the ACLU.”

Even a former United States magistrate judge said this action was out of line.

"This one is particularly disturbing given the federal government's role in coming in and taking all of these records that were at issue in a state open government act," Brian Owsley told Ars.

Owsley previously served as a federal judge in Texas for eight years, and he's now a law professor at Texas Tech. Owsley is even involved in a related situation involving an attempt to reveal the government's actions. Not long before he stepped down from the bench, Owsley tried to unseal more than 100 of his own long-completed judicial orders involving digital surveillance that he himself sealed at the government’s request.

But then, a US District Judge—who outranks a magistrate—vacated Owsley’s order and resealed them all. That order itself was then sealed. The media company Dow Jones, which publishes The Wall Street Journal, filed a motion in federal court this week to compel the release of those documents.

"These records do not appear to be federal in nature, as it appears the criminal investigation is a state one," Owsley continued, speaking about the Sarasota situation. "It strikes me as extremely unusual that a court would issue an order and maintain no record of it. That was never my experience in federal court regarding my sealed orders. The documents should all still be there, but the federal court in Corpus Christi simply is keeping them sealed. Even in Florida, it sounds like the state courts are supposed to maintain copies. Of course, the judge's ruling is a victory for transparency in the courts."