The Sacramento County Sheriff’s Department (SCSD), the largest law enforcement agency in California’s capital region, has operated a stingray at least 500 times without a warrant in the last decade. But if you asked SCSD directly, even recently they wouldn't give you a definite figure.

As part of an ongoing investigation into stingray use nationwide, Ars filed a public records request with the SCSD this year. And at the end of April, the SCSD responded. The department claimed that "no responsive documents exist," essentially saying that there are no records detailing how many times its stingray has been used.

That seemed a bit odd because in 2013, local Sacramento television station News 10 obtained a Homeland Security grant application written by the SCSD. The proposal aimed to upgrade the department's stingray capabilities, and as part of its justification, the SCSD claimed to know how successful its device has been:

Through the use of existing (yet soon to be antiquated) equipment the Sacramento County Sheriff Department has assisted more than 26 local, State and Federal agencies with more than 500 successful criminal investigations and apprehensions of violent offenders.

News 10 first received this document via the California Office of Emergency Services and eventually shared it with Ars. But when we asked Sacramento County lawyers to re-consider their response to our stingray records request in light of this information, they declined to do so.

"The Sacramento County Sheriff’s Department is not is a position to make any further comment on this matter," Peter Cress, a lawyer for the SCSD, wrote to Ars. "Thanks for your continued cordial questions; however, there will be no further statements."

“Mind-boggling”

Overall, Ars asked the SCSD to produce a substantial amount of information, including policies and guidelines for the use of a stingray and the number of times the stingray has been used. In response, we only received several pages of invoices from nearly 10 years ago. We were told in most cases that "no responsive documents exist." In light of the grant application and stringray policies across the country—see our recent report on how the San Bernardino Sheriff’s Department warrantlessly used its stingray over 300 times during a recent 16 month period—the SCSD's claim became difficult to believe.

"SCSD’s response is astonishing," Fred Cate, a law professor at Indiana University, told Ars by e-mail. "If the response is accurate, the Sheriff’s office has no policies or guidelines governing the use of stingrays, no training materials, and no idea when or how frequently stingrays have been used. The office spent taxpayer dollars to acquire a technology that it doesn’t know how or when should be used, or whether it has had any value in any investigation. That is mind-boggling. Alternatively, if the response is inaccurate, that's of course highly problematic in a system of democratic oversight. In either case, the public should be concerned."

Others were equally baffled. Hanni Fakhoury, a former public defender and current lawyer with the Electronic Frontier Foundation, wasn't worried about the lack of usage records necessarily.

"An important tool for preventing use of the technology is to be clear with officers about what they can and can’t do," he told Ars. "It does both the officers and the public a disservice when decisions governing the use of the device are left to the whims of the officers in the field."

Linda Lye, an attorney with the American Civil Liberties Union of Northern California, concurred. "If it's true that no documents exist, it's troubling that they are operating an intrusive device without policies and procedures," she told Ars. "And if they do have [documents], then why are they telling you that no documents exist?"

Lye understands Ars' current situation particularly well. In March 2015, Lye and her colleagues sued the SCSD for non-compliance with the California Public Records Act. They had filed a similar public records request and received equally inadequate results regarding stingray use. The SCSD subsequently filed a perfunctory reply, but this case is still in its very early stages, and neither party has made oral arguments before a judge. (The ACLU also has a similar case pending against the Anaheim Police Department, while the California First Amendment Coalition has a related case pending against the San Diego Police Department.)

NDA, NDA, NDA

In addition to the sheriff's department, Ars contacted all five members of the Sacramento County Board of Supervisors to discuss stingrays. We did not hear back from any of these officials except from Phil Serna.

"Unfortunately, Supervisor Serna and our office are not able to comment on or discuss this matter due to pending litigation," his chief of staff, Lisa Nava, e-mailed Ars.

This lack of local government involvement and discussion isn't new. Elsewhere in California, neither city councils nor county supervisors have typically stood up to law enforcement’s desire to acquire such invasive technology.

But one notable exception is the Santa Clara County Board of Supervisors in the heart of Silicon Valley. That board initially allowed the county sheriff to accept federal grant money to purchase a stingray, but it eventually rejected those finances in May 2015.

"When someone says, 'You need to sign a non-disclosure agreement, but we can't let the elected officials read the non-disclosure agreement,' we're really in Alice in Wonderland territory," Joe Simitian, a county supervisor and former state senator, told Ars.

He continued:

I'm a Silicon Valley legislator; I understand intellectual property and the value of proprietary information. I have a long track record that the intellectual property in my region is protected. It's key to the success of knowledge economy. If anything, I'm more sympathetic than somebody else might be. But at no point in the debate did anyone explain how sharing some of this information would compromise its utility. I understand that you can't share certain pieces of info without compromising law enforcement, but you need to be able to make the case. We never got that. Three months later, I'm still unaware of a cogent or compelling argument as to why sharing some of this information about the most basic questions [is harmful]: what does it do? How does it work? I'm not asking for proprietary information. I'm not asking anyone to compromise intellectual property, but I'm just asking for basic information as to what we're being asked to spend $500,000 on, and the risks to public privacy and due process and our safeguards to protect the public. I think it's unfortunate there are legit public safety concerns. There may well be appropriate uses for the tech, but when we can't have that debate in a public forum because we're denied the information and informed judgments, it's an overreach that I ultimately don't think serves the public well. I have never encountered a situation like this in my professional career.

Truth and consequences

Back in Sacramento, not only will both politicians and the SCSD refuse to comment, they also may be trying to prevent others from researching local stringray use.

When News 10 started researching how stingrays were being used by the SCSD, the department initially denied any interview requests. Reporter Thom Jensen confronted Sheriff Scott Jones in person, but the stalemate continued. "I think all the responses you've gotten from our department is all the responses you're going to get from our department," Jones said in a testy exchange caught on camera.

But around the same time, the Sacramento Bee was somehow able to coax a statement out of Jones.

"The capability of this technology does NOT collect content such as voice, text or data, and does not retain ANY data or other information from other than the target device," Jones wrote. "It is used infrequently in special cases, following department policies and procedures, to locate felony suspects and/or missing or kidnapped persons."

If the SCSD's "no records" claim is to be believed, Jones' comments can’t also be true. How could he confidently state the device was used "infrequently" or in "special cases?"

News 10 continued to press, and Jensen went on to look through 2,000 warrant applications filed with the Sacramento Superior Court since 2006—some of which he shared with Ars. The reporter found no mention of a stingray. He viewed pen register applications filed by SCSD officers but again found nothing. The documents shared with Ars also had no mention of a stingray.

One of the basic problems with stingrays is that there seems to be a mere modicum of judicial approval. As Ars reported previously, in the pre-cell phone era, a "pen register and trap and trace order" allowed law enforcement to obtain someone's calling metadata in near real time from the telephone company. Now that same data can be gathered directly by the cops through the use of a stingray.

So Jensen's findings, of course, don't indicate an absence of stringray use. Most stingray-related pen register applications to courts are not very explicit about what exactly law enforcement wants to do nor how exactly its plan will be carried out. This is precisely the reason why Washington state just signed into law a new warrant requirement for stingray use, one that also imposes stringent disclosure and data minimization standards. A similar bill in California is pending in the state legislature.

As News 10's stringray reporting became public, even the "no comment" responses stopped. Jensen said the SCSD ceased nearly any communication with the news network, including simple press releases. While the SCSD may likely be operating under a non-disclosure agreement between it and the FBI—along the lines of one Ars recently obtained regarding the San Bernardino Sheriff’s Department—those typically don't mandate utter silence.