The ACLU of Florida says Sarasota Police are using a federal agency to shroud documents about a cell phone tracking program. (Photo via Johnathan Lyman/Creative Commons)

The ACLU of Florida says Sarasota Police are using a federal agency to shroud documents about a cell phone tracking program. (Photo via Johnathan Lyman/Creative Commons)

By Ashley Lopez
Florida Center for Investigative Reporting

This week, the American Civil Liberties Union of Florida filed an emergency motion in state court to gain access to information about a controversial law enforcement cell phone tracking program known as “stingray.”

The ACLU of Florida– along with the ACLU– are looking into how and when police departments across the country are using “stingray” technology. Nathan Wessler, a staff attorney with the ACLU, explained in a blog post in March that these “stingrays,” which are also known as cell site simulators, “impersonate cell phone towers, prompting phones within range to reveal their precise locations and information about all of the calls and text messages they send and receive. When in use, stingrays sweep up information about innocent people and criminal suspects alike.”

The ACLU of Florida has been seeking public records for several months now from about 30 police departments and sheriffs’ offices all over Florida in an effort to access whether or not police are not trampling on privacy rights.

So far, Wessler writes, they’ve found evidence that “at least one police department in Florida has failed to tell judges about its use of a cell phone tracking device because the department got the device on loan and promised the manufacturer to keep it all under wraps.”

The power of stingrays, and the lengths to which police will go to conceal their use, are demonstrated by an ongoing case in Florida, State v. Thomas. As revealed in a recent opinion of a Florida appeals court, Tallahassee police used an unnamed device — almost certainly a stingray — to track a stolen cell phone to a suspect’s apartment. (The case’s association with stingrays was first pointed out by CNET’s Declan McCullagh in January). They then knocked on the door, asked permission to enter and, when the suspect’s girlfriend refused, forced their way inside, conducted a search, and arrested the suspect in his home. Police opted not to get warrants authorizing either their use of the stingray or the apartment search. Incredibly, this was apparently because they had signed a nondisclosure agreement with the company that gave them the device. The police seem to have interpreted the agreement to bar them even from revealing their use of stingrays to judges, who we usually rely on to provide oversight of police investigations.

When the suspect’s lawyer tried to ask police how they tracked the phone to his client’s house, the government refused to answer. A judge eventually forced the government to explain its conduct to the lawyer, but only after closing the courtroom to the public and sealing the transcript of the proceedings so the public and the press could never read it. Only later, when the case was heard on appeal, did the most jaw-dropping fact leak out. As two judges noted during the oral argument, as of 2010 the Tallahassee Police Department had used stingrays a staggering 200 times without ever disclosing their use to a judge to get a warrant.

Besides looking into how the technology is used, the ACLU has also been concerned about the lengths police have taken to conceal their records on their respective surveillance programs.

Most recently, the ACLU filed a lawsuit against the Sarasota Police Department because officials there claimed information about their stingray program belonged to the U.S. Marshals Services, which is part of the U.S. Justice Department and therefore not subject to Florida’s open records laws.

According to a press release from the ACLU of Florida, representatives from their organization had plans to meet with Sarasota Police to go over their documents, but:

A few hours before the scheduled appointment, however, an assistant city attorney canceled the meeting after U.S. Marshals Service claimed the records as their own and instructing the Sarasota Police not to release them. The U.S. Marshals Service claims it deputized the Sarasota Police officer who had applied for the stingray orders and that the records related to the applications and orders – including the state court’s copies – were the property of the federal government and not subject to Florida public records law.

“That police use stingray [devices] is nothing new, but that the police would go to these lengths to evade a public discussion on how and when they use them is alarming,” said Benjamin Stevenson, staff attorney for the ACLU of Florida.   “What the police do in the public’s name is the public’s concern. People have a right to know about police’s use of stingray devices—when and how they use them to monitor communications and the whereabouts of innocent people in the vicinity.  Only through this open discussion can we set the proper limits of this technology.”

The U.S. Marshall Service apparently seized all the original and copies of the Sarasota Police’s applications and the court orders. The ACLU learned that the Sarasota Police customarily does not submit copies of stingray applications and proposed orders for the use of the devices to the court.

“Florida’s Public Records Act allows citizens to discover what their government is up to,” said Andrea Flynn Mogensen, Vice Chair of the ACLU of Florida’s Sarasota Chapter and a cooperating attorney on the ACLU’s complaint. “When public records are wrongfully withheld by allowing them to be transferred to a federal agency, the law is violated. When our government is pervasively monitoring us with new technology, we deserve answers, not hidden records.”

In response, the ACLU of Florida filed an emergency motion requesting a judge issue an order that would stop the Sarasota Police from transferring more records to the U.S. Marshals. The ACLU also wants a ruling on whether police violated state public records law in the first place.

This is one of the more bizarre situations that has arisen from what Wessler has called a “run-of-the-mill public records request about cell phone surveillance submitted to a local police department in Florida.”

In a recent blog post on the ACLU’s website, Wessler writes that there are a lot of aspects of this situation that he finds alarming:

RED FLAG #1: The Sarasota Police initially told us that they had responsive records, including applications filed by and orders issued to a local detective under the state “trap and trace” statute that he had relied on for authorization to conduct stingray surveillance. That raised the first red flag, since trap and trace orders are typically used to gather limited information about the phone numbers of incoming calls, not to track cell phones inside private spaces or conduct dragnet surveillance. And, such orders require a very low legal standard. As one federal magistrate judge has held, police should be permitted to use stingrays only after obtaining a probable cause warrant, if at all.

RED FLAG #2: The Sarasota Police set up an appointment for us to inspect the applications and orders, as required by Florida law. But a few hours before that appointment, an assistant city attorney sent an email cancelling the meeting on the basis that the U.S. Marshals Service was claiming the records as their own and instructing the local cops not to release them. Their explanation: the Marshals Service had deputized the local officer, and therefore the records were actually the property of the federal government.

We emphatically disagree, since the Sarasota detective created the applications, brought them to court, and retained the applications and orders in his files. Merely giving him a second title (“Special Deputy U.S. Marshal”) does not change these facts. But regardless, once the Sarasota Police Department received our records request, state law required them to hold onto the records for at least 30 days, to give us an opportunity to go to court and seek an order for release of the documents.

Instead of complying with that clear legal obligation, the local police allowed the records to disappear by letting the U.S. Marshals drive down from their office in Tampa, seize the physical files, and move them to an unknown location. We’ve seen our fair share of federal government attempts to keep records about stingrays secret, but we’ve never seen an actual physical raid on state records in order to conceal them from public view.

RED FLAG #3: Realizing we weren’t going to get hold of the Sarasota Police Department’s copies of the applications and orders anytime soon, we asked the county court if we could obtain copies from its files. Incredibly, the court said it had no copies. The court doesn’t even have docket entries indicating that applications were filed or orders issued. Apparently, the local detective came to court with a single paper copy of the application and proposed order, and then walked out with the same papers once signed by a judge.

In a statement to the press, Sarasota Police Deputy Chief Stephen Moyer said, “At this time, the Sarasota Police Department has a different opinion than that of the plaintiffs of this lawsuit.  We will continue to work with our legal counsel on this matter.”