ACLU lawsuit challenges secret phone-tracker programs

Police departments may have been tracking your every move without a warrant. But the full extent of the program — and its total cost to California taxpayers — has been kept secret.

A year ago the American Civil Liberties Union of California submitted public records requests to the Sacramento County Sheriff’s Department and Anaheim Police Department to produce documents pertaining to a cellphone surveillance program. Those requests were denied, leading the advocacy group to take their case to Orange County and Sacramento Superior Courts.

Both departments admit to owning Stingrays, or “cell site simulators,” which trick cellphones of nearby users into connecting to their surveillance devices. The cellphones of unsuspecting users think they are connecting to a cellphone tower, but instead send geo-location and other sensitive information to police agencies.

ACLU: No oversight of controversial surveillance

The ACLU is concerned about the lack of oversight of a program that is potentially collecting data on innocent Californians — people who’ve done nothing wrong and aren’t the intended targets of law enforcement.

“Stingrays are capable of invading the privacy of innocent Americans, so the public must be able to monitor how law enforcement agencies use them,” said Peter Bibring, the ACLU of California’s director of police practices. “The police cannot adopt a new, invasive surveillance technology without any kind of public oversight or accountability.”

Rather than hand over documents about the controversial program, both law enforcement agencies refused to comply with the ACLU’s public records request, using different tactics for obstructing transparency. The Sacramento Sheriff’s Department acknowledged the requested documents existed, but refused to disclose them. After a follow-up request, the agency redacted documents and claimed an exemption under the Homeland Security Act and Arms Export Control Act.

Meanwhile, the Anaheim Police Department claimed the request was vague, while acknowledging the documents existed. The department then refused to produce the records, citing an exemption due to trade secrets.

“The CPRA ensures Californians’ fundamental right to information about the actions that law enforcement agencies take in their name,” Matt Cagle, an attorney with the ACLU of Northern California, said in a press release. “The police cannot claim secrecy over their routine use of Stingrays, invasive surveillance devices that indiscriminately collect data on suspects and bystanders alike.”

Agencies flout spirit of California’s open records law

Back in the late 1960s, when state lawmakers drafted the California Public Records Act, they intended a robust law to aid government transparency.

“In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state,” the opening paragraph of the landmark law states.

Yet multiple exemptions give agencies the power to block disclosure. That forces public interest groups or citizen activists to hire attorneys to take to court the government agency, with its extensive resources paid for by taxpayers. In other situations, agencies charge a high upfront cost for copies of paper records.

According to the Associated Press, “Whether roadblocks are created by authorities to discourage those seeking information, or simply a byproduct of bureaucracy and tighter budgets, greater costs to fulfill freedom of information requests ultimately can interfere with the public’s right to know.”

California’s hollow disclosure law

Journalists and First Amendment experts say the California Public Records Act, while well-intended, has lost its effectiveness.

“California has a law that was originally a pretty good law, from the standpoint of government transparency, but over the years, it’s become a much less good law — maybe even a bad law,” Peter Scheer, executive director of the First Amendment Coalition, recently told the San Bernardino Sun. “The incentives are all on the side of withholding. No one’s ever been yelled at, reprimanded or fired for withholding information.”

Last summer, Gov. Jerry Brown and state lawmakers quickly passed special tax breaks for defense contractors Boeing and Lockheed Martin. Some information about the deal was withheld from lawmakers and nearly all of it was withheld from the public. The state’s Office of Business and Economic Development, also known as GO-Biz, denied a public records request by Calnewsroom.com for information about the negotiations.

“If GO-Biz were to provide you access to all the documents you seek, highly sensitive information would be disclosed that would jeopardize the possibility of the state of California being able to compete to attract companies like Lockheed Martin, Northrop or Tesla,” Grace Arupo Rodriguez, GO-Biz’s deputy director of legal affairs, wrote in a letter denying a public records request.

In the case of the Stingray surveillance program, Californians may not know the true nature of the program until the state’s transparency laws are upgraded.

According to the Los Angeles Times, “In Florida, which has among the most open government disclosure requirements, public records obtained by the ACLU showed that the state spent more than $3 million on the devices and related equipment. The Tallahassee police detailed 250 investigations in which it had used Stingrays.”