EFF Sues California Law Enforcement Agency For Refusing To Hand Over Stingray Documents

from the when-six-warrants-is-a-constellation-of-records dept

The EFF is taking the San Bernardino County Sheriff's Department to court. The dispute centers on Stingray warrants possessed by the agency. The Sheriff's Department likely holds more of these records than any other agency in the state. According to the Desert Sun's investigation -- based on state law-mandated reporting on electronic searches, San Bernardino residents were 20 times more likely to be subjected to an electronic search than residents elsewhere in state.

Even more troubling, a lot of these searches -- including Stingray deployments -- were performed by the department when it had no idea who it was looking for or whose devices it was searching.

If the situation is deemed an emergency, the judge can grant law enforcement the option to delay notification for up to 90 days. A 90-day delay is also granted in cases when the identity of the person they are investigating is not known by the investigating agency. [...] Warrants are only reported to the California Department of Justice if the warrant receives the 90-day delay for notification. The department does not include records of warrants for electronic property, if the target is notified immediately. Of the more than 700 warrants reported to the California Department of Justice by the San Bernardino County Sheriff’s Department, only 47 received emergency status, meaning 93 percent of their warrants were granted to investigate people whose identity was unknown to the department. The department did not provide an explanation for why they are investigating the digital property of so many people before identifying them.

The numerous searches -- which apparently include a large number of fishing expeditions -- is an ongoing concern, especially with California's more stringent privacy laws in play. The Sheriff's Department has been a fan of Stingrays for a long time, but hasn't been very forthcoming about its deployments. This dishonesty extends to judges, who were handed pen register order requests that disguised the true nature of the search. The "insert probable cause" boilerplate pen register request obtained by Cyrus Farivar of Ars Technica suggests invasive searches were performed with plug-and-play paperwork that both laundered the evidence and utilized one-size-fits-all phrasing when seeking judicial approval.

What the EFF is seeking is a very small subset of Stingray warrants possessed by the Sheriff's Department. It's attempting to obtain copies of six warrants specifically identified by the state's Department of Justice in mandated publications. The search for these documents by the Sheriff's Department should be made even easier thanks to the inclusion of a noticeable typo.

EFF determined that the county has used cell-site simulators 231 times in the last year and filed a request under the California Public Records Act in August to obtain search warrant information for six specific searches that were made public by the DOJ. Each of the searches included authorization for the use of “cell-site stimulators” [sic], an apparent misspelling of the cell-phone tracking technology in the records submitted by San Bernardino to the DOJ. EFF’s public records request sought court case numbers associated with the search warrants, which would enable researchers to locate court records like affidavits justifying the need for a warrant and other information vital to assessing whether police are following the law and their own policies when obtaining warrants. The request contained detailed information about each warrant, made public by the DOJ, such as the nature of the warrants, the precise start and end dates of the warrants and verbatim quotes about the grounds for each warrant.

The Sheriff's Department responded to this hyperspecific records request with more government agency boilerplate. It claimed the request was "vague" and "overly broad" and failed to describe an "identifiable record." This deliberate obtuseness will now have to be defended in court. Considering the request, the EFF's arguments aren't that difficult to make. From the filing [PDF]:

In an attempt to learn about Defendants’ use of these devices, EFF sent a request for records relating to six cell site simulator warrants that precisely identified each warrant using the information on the Department of Justice’s OpenJustice website, including the date range of the authorized search, the nature of the investigation, the items to be searched for, and the exact date and time Defendants electronically provided information about them to the Department of Justice. Defendants refused to comply with the request, claiming that it failed to reasonably describe the records at issue and that the records are exempt from disclosure as records of an investigation under Government Code § 6254(f). Neither of these is a legitimate justification for failing to provide the records: The request more than reasonably described the target records. In fact, it uniquely identified the warrants in question, providing the exact time frame covered by the warrant, the exact date and time the Defendants provided information about the warrants to the Department of Justice, and other identifying information. Defendants’ claim in this regard is particularly weak because their own policy – which state law requires them to adopt and make public – requires their personnel to obtain high-level approval for, and then maintain a log of, all warrants like those here at issue. This log must contain the dates that the cell site simulator was used, which would mirror or be contained within the time frame covered by the warrant, and so would allow Defendants to easily identify and locate the requested warrants.

The EFF also points out the Sheriff's Department can't throw a blanket exception over court records -- which are presumptively public. In addition, the California DOJ has specifically instructed the EFF to obtain documents (like these warrants) listed on its OpenJustice website directly from the agency that created them.

Having been forced into openness by legislation, the Sheriff's Department is hoping to maintain some level of opacity even as it continues its record-setting pace for electronic searches of individuals it can even identify. It shouldn't take long for the court to decide the Sheriff's claims about vagueness and broadness are ridiculous. Hopefully, the court won't decide presumptively-public documents like court orders and warrant affidavits can be withheld just because a cop shop says they might reveal cop stuff.

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Filed Under: foia, imsi catcher, lawsuit, san bernardino, san bernardino county sherriff's department, stingray

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