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Copyright © 2018 Albuquerque Journal

For the last six years, Albuquerque police have had at least two devices capable of spying on cellphone calls and texts, though the city says police are authorized to use them only to collect tracking data, not details.

But how much the technology has been used, on whom and why is not clear to the public — nor will it be. Police and city officials say they can’t answer questions because that would violate device purchasing agreements signed with the FBI, which hints at federal prosecution for anti-terrorism and weapons trafficking laws if details are revealed. It’s also possible the only consequence for answering questions is losing use of the devices.

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What is clear from documents obtained by the American Civil Liberties Union of New Mexico following a lawsuit against the city is that for most of the six years the department has had the devices, which include at least one Stingray and at least one DRT box , the department did not have its own written policy or procedures guiding the use of the devices or the handling of the information they captured.

In a pivot from the Richard Berry administration, which withheld confirmation of the devices, the Tim Keller administration in January released the confirming documents to the ACLU. They agreed to dismiss their lawsuit.

City Attorney Esteban Aguilar Jr. said Friday the release was intended to further transparency and engage the community in policy making.

Aguilar would not say what types of cases the devices are used in but said, hypothetically, they are helpful in emergencies such as a lost hiker or a lost child who might have a cellphone.

But he also said they are an important tool for law enforcement, possibly for “apprehending a fugitive suspect” or in a violent crime investigation.

Chris Dodd, trial attorney with the Law Offices of the Public Defender in Albuquerque, said he imagines police would likely use the devices for drug investigations, too.

“If you have a suspected drug trafficker and you want to find all of his associates, you can park (the device) in a van in the neighborhood so you can then see everyone who he is contacting him and start making list and go through law enforcement databases to find who those people are,” he said.

That, he said, also captures data for all the drug trafficker’s neighbors, and that could be anyone using a cellphone.

“The problem with Stingray technology, is (officials) are telling (police) ‘don’t ever write anywhere when you use it’, so it’s hard for us to know if in fact it was used in a case,” Dodd said. But he said his office is “not aware of any cases where we strongly suspect that it was used.”

The city, for its part, says it can’t say if it has been used or how much or in what types of cases without violating the non-disclosure agreement with the FBI. The federal agency brokers the sale of the devices from private corporations.

Despite what the ACLU says is progress in transparency on the controversial technology, Executive Director Peter Simonson said Friday that a recent meeting with the department intended to discuss the creation of a more formal policy was instead a “pretty tense and constrained” meeting with city attorneys refusing to answer questions.

“There is a lot that remains unanswered,” Simonson said, noting his group is not opposed to the department using the technology, the ACLU just wants strong and clear policies that protect civil liberties. “The public deserves some proof there is a process in place for the protection of people’s privacy.”

Keller was not available for an interview, but his newly-appointed city attorney did answer what questions he said he could without violating the FBI’s prohibitions.

“I will say that the police department is not intercepting communications. They are prohibited from gathering the actual content of the communications, specifically prohibited,” Aguilar said, noting discussing the technology with the ACLU and others puts the city in difficult position. “We want to be as transparent as possible on this specific issue, but we are specifically prohibited from discussing a whole lot of stuff.”

The non-disclosure form says that the agreement trumps any state or local open records laws. The forms also direct prosecutors to dismiss criminal cases if a court orders discovery that could reveal details on the devices.

Former 2nd Judicial District Attorney Kari Brandenburg said that never happened under her administration, and she wonders how much the devices are actually used.

Current DA Raúl Torrez was also not available for an interview and his spokesman did not answer questions, instead, sending this statement:

“While we are unaware of any criminal referral from our law enforcement partners predicated on the use of cell site simulation technology, we are mindful that any emerging law enforcement tools may present challenges to our understanding of privacy. To whatever extent such technology becomes material to case prosecution in the future, we will work with our law enforcement partners, the courts and the legislature to define the appropriate boundaries for its use.”

It was not disclosed if the District Attorney’s Office has also signed a non-disclosure agreement with the FBI.

Around the nation, news reports and the ACLU have documented instances in which prosecutors have dismissed cases instead of reveal the way the devices (like those in Albuquerque) are used in investigations.

Former Mayor Berry declined to comment. His Chief Administrative Officer Rob Perry, who along with then-Police Chief Gorden Eden signed the FBI non-disclosure agreement to acquire the Stingray in 2014, said he didn’t remember the event or the technology.

APD Chief Mike Geier was also not available for an interview. His spokesman, Gilbert Gallegos, instead sent a statement saying the department is “utilizing the technology in strict compliance with all applicable guidelines governing the use of such technology, which include strict non-disclosure provisions required by the Department of Justice and the FBI.”

What is a Stingray or DRT box device?

Albuquerque Police Department records confirm it has at least one each Stingray and DRT box cellular phone surveillance device. The devices basically work like this:

The devices mimic a cellphone tower, drawing to them all cellphone use within a certain distance of their locations. They can be attached to a building, vehicle, drone or airplane to scan an area near targets of investigations. Such devices then can track all phones used in the vicinity — not just the target phone — and some devices can listen to conversations and track texts underway on the phones. Some may have additional technological features.

The devices can also seek and find cellphones, recognizing the strength of a phone signal and the direction it is coming from, even if the phone isn’t making a call or connected to a data network.

Warrant or not?

It is not clear whether the Albuquerque Police Department has for the last six years considered the technology subject to warrant requirements. Police spokesman Gilbert Gallegos said the department does secure warrants before using the technology, and City Attorney Esteban Aguilar Jr. said Friday that APD follows, as it has for years, the Department of Justice’s guidelines for police agencies using this technology. That guideline says police must obtain a warrant except in emergency situations and “exceptional circumstances.”

The guideline also says the devices are authorized by “law and policy.” But the department’s draft policy, written in August 2017 (five years after acquiring a device), says that “if a court order is needed” one should be obtained otherwise a police supervisor must approve using the device.

State law doesn’t explicitly require a warrant to collect the data gathered by Stingray and DRT box devices. A bill passed by the Legislature in 2017 would have required a court order for a Stingray action, along with other searches of electronics, but Gov. Susana Martinez, a former prosecutor, vetoed the bill.

The American Civil Liberties Union of New Mexico says it wants a warrant process put into the APD policy. Aguilar said the city welcomes the ACLU’s input.

ACLU, CABQ documents by Albuquerque Journal on Scribd