As controversy builds over the Anaheim Police Department’s use of cell phone spying devices known as StingRays, Police Chief Raul Quezada insists that the department is only using them with valid court orders and not violating the privacy of city residents.
But an attorney with the American Civil Liberties Union of Southern California – which is suing Anaheim for access to records about how officers use the technology – told the Orange County Register that Quezada’s explanation isn’t good enough on its own.
Meanwhile, the department’s refusal to release records about the devices has drawn concerns from some in the city’s sizable Arab-American and Muslim community.
StingRays are most commonly used as tracking devices. They work by mimicking cell phone towers, diverting a targeted individual’s mobile data and allowing police to see with GPS precision the comings and goings of that person.
But StingRays also cast a wide net, potentially capturing data from all cell phones within a 1-mile-radius. With upgrades, they sweep up text messages, emails and phone conversations.
A StingRay “does not target specific people, it targets people indiscriminately,” said ACLU attorney Jessica Price. “If they’re gathering information from everybody within a mile of the device, what are they doing with that information?”
In the past, police departments needed court-issued search warrants if they wanted an individual’s phone records. But with a suitcase-sized StingRay, that information is right at officers’ fingertips, making it easy to circumvent judicial oversight, according to ACLU attorneys.
The police department says ACLU attorneys are exaggerating the capabilities of the devices and how police are using them.
A “community letter” signed by Quezada and posted on the department’s website states that the StingRay used by Anaheim police “does not retain third-party information” or feed that data into a database. It also doesn’t have the ability to intercept calls or texts, according to the letter.
The letter also says that police obtain court orders before using the device, except when an “exigent circumstance” — like a kidnapping or report of a missing child — could mean immediate physical danger. In those cases, the department “submits a warrant for judicial review for the prior operation of the device,” the letter says.
The letter notwithstanding, ACLU attorney Peter Bibring told the Register that the civil rights group will continue with its lawsuit.
“This does not, in any way, resolve the lawsuit,” Bibring said. “The public is entitled to see the documents, rather than accept the characterizations of the chief.”
ACLU attorneys and others say that even with a judge’s permission, the secrecy surrounding the devices means judges don’t always know what they’re signing off on. The News Tribune of Tacoma, Florida found that judges unwittingly allowed police to use StingRays in 170 cases.
Such revelations are why ACLU attorneys say they are scrutinizing how police agencies are obtaining court authorizations, and how they handle data scooped up from innocent bystanders.
In California, the ACLU of Southern California asked for documentation from 11 different police departments, according to Price. Only Anaheim refused to provide any records, she said. The Sacramento County Sheriff’s Department also mostly refused to comply, but did provide five pages of a funding application to pay for the devices.
The scarcity of documentation is what ACLU attorneys say led them to file lawsuits against Anaheim and the Sacramento County Sheriff’s Department. The suits allege the agencies are violating the California Public Records Act by refusing to disclose records based on exemptions under the law, such as the protection of trade secrets, that can only apply to a narrow set of documents.
“The people have a right to know the circumstances under which their government invades their privacy in their name,” the ACLU lawsuit reads.
Police departments across the country have signed confidentiality agreements with the FBI in order to obtain the devices. The agreements are so restrictive, the documents themselves aren’t open to public inspection, according to media reports.
But Terry Francke, general counsel for the open government advocacy group Californians Aware, says public agencies under the state’s public records law can only sign agreements to keep confidential those records that would already be exempt.
“Nondisclosure agreements with public agencies are only as strong as whatever exemptions can be cited in the law,” Francke said.
Francke also took issue with the other exemptions Anaheim cited in denying the ACLU’s public records request, including the “official information” privilege and another exemption for records reflecting “security techniques” used by police.
“The StringRay technology as far as I’ve heard it described is not a security procedure, it’s simply a way to track people out in the community that are for whatever reason of interest to the police,” Francke said. “Security could be something to do with how officer safety is preserved, that sort of thing.”
Regarding the “official information” exemption, Francke said Anaheim must prove that there is a public interest in withholding all its records related to the devices.
Peter Scheer, executive director of the First Amendment Coalition, which is suing the city of San Diego and its police department to obtain records about that agency’s use of StingRays, claims the devices grant local police NSA-level spying powers.
This reality, Scheer said, should keep us all up at night.
“I’m not sure what is scarier, having this tech in the hands of highly competent but incredibly secretive spies at the NSA, or having it in the hands of the gang that couldn’t shoot straight,” Scheer said.
Such power in the hands of local police has already got the attention of leaders of Anaheim’s Muslim and Arab-American community. They say they’re uncomfortable with the city’s secrecy regarding how it could be using a sweeping surveillance technology in a city with, by some estimates, tens of thousands of Muslims and Arabs passing through daily.
Other law enforcement agencies have obtained the devices with grant funding from the federal Department of Homeland Security, and the departments typically cite fighting terrorism as the intended use, according to media reports.
“I didn’t know this was happening,” said Rashad Al-Dabbagh, an Anaheim resident and a vocal supporter of the city’s Little Arabia business district, when told about the lawsuit. “It’s troubling because we, especially in our community, we’ve been under surveillance for a while.”
Fatima Dadabhoy, senior civil rights attorney for the Council on American-Islamic Relation’s Los Angeles chapter, said the Anaheim Police Department’s relationship with the Arab community has already been strained by reports that young Arab men are being profiled by police officers who stereotype them as aggressive and “hot-headed.”
Although Dadabhoy said relations are improving, news that the police department could have a secretive StingRay program doesn’t help. And while privacy rights are a concern for all Americans, it “becomes greater” for a population so heavily targeted, she said.
“It puts the community at risk when there isn’t any transparency around it,” Dadabhoy said of the program. “This allows the police to do it on a level where they’re not accountable for it.”
Yet not everyone shares these concerns.
Bill Dalati, an Arab-American and former Anaheim City Council candidate, says if police are conducting an investigation based on reasonable suspicion, then the use of StingRays should be supported.
Dalati said he has great respect for the Anaheim Police Department, and that he doesn’t think any law enforcement agency – especially Anaheim – would skirt privacy laws.
“We have to do what we have to do to protect America,” Dalati said.
Still, Dalati said he want to know more about how the devices are used. If the police aren’t obtaining judicial authorization to use the spyware, he says he’s “concerned as any American.”
“I want to see the reasons behind it. That’s all,” Dalati said. “If it makes sense or not… so far I don’t know enough.”
Please contact Adam Elmahrek directly at aelmahrek@voiceofoc.org and follow him on Twitter: @adamelmahrek