EFF Sues California Law Enforcement Agency For Refusing To Hand Over Stingray Documents

from the when-six-warrants-is-a-constellation-of-records dept

The EFF is taking the San Bernardino County Sheriff's Department to court. The dispute centers on Stingray warrants possessed by the agency. The Sheriff's Department likely holds more of these records than any other agency in the state. According to the Desert Sun's investigation -- based on state law-mandated reporting on electronic searches, San Bernardino residents were 20 times more likely to be subjected to an electronic search than residents elsewhere in state.

Even more troubling, a lot of these searches -- including Stingray deployments -- were performed by the department when it had no idea who it was looking for or whose devices it was searching.

If the situation is deemed an emergency, the judge can grant law enforcement the option to delay notification for up to 90 days.

A 90-day delay is also granted in cases when the identity of the person they are investigating is not known by the investigating agency.

[...]

Warrants are only reported to the California Department of Justice if the warrant receives the 90-day delay for notification. The department does not include records of warrants for electronic property, if the target is notified immediately.

Of the more than 700 warrants reported to the California Department of Justice by the San Bernardino County Sheriff’s Department, only 47 received emergency status, meaning 93 percent of their warrants were granted to investigate people whose identity was unknown to the department.

The department did not provide an explanation for why they are investigating the digital property of so many people before identifying them.

The numerous searches -- which apparently include a large number of fishing expeditions -- is an ongoing concern, especially with California's more stringent privacy laws in play. The Sheriff's Department has been a fan of Stingrays for a long time, but hasn't been very forthcoming about its deployments. This dishonesty extends to judges, who were handed pen register order requests that disguised the true nature of the search. The "insert probable cause" boilerplate pen register request obtained by Cyrus Farivar of Ars Technica suggests invasive searches were performed with plug-and-play paperwork that both laundered the evidence and utilized one-size-fits-all phrasing when seeking judicial approval.

What the EFF is seeking is a very small subset of Stingray warrants possessed by the Sheriff's Department. It's attempting to obtain copies of six warrants specifically identified by the state's Department of Justice in mandated publications. The search for these documents by the Sheriff's Department should be made even easier thanks to the inclusion of a noticeable typo.

EFF determined that the county has used cell-site simulators 231 times in the last year and filed a request under the California Public Records Act in August to obtain search warrant information for six specific searches that were made public by the DOJ. Each of the searches included authorization for the use of “cell-site stimulators” [sic], an apparent misspelling of the cell-phone tracking technology in the records submitted by San Bernardino to the DOJ.

EFF’s public records request sought court case numbers associated with the search warrants, which would enable researchers to locate court records like affidavits justifying the need for a warrant and other information vital to assessing whether police are following the law and their own policies when obtaining warrants. The request contained detailed information about each warrant, made public by the DOJ, such as the nature of the warrants, the precise start and end dates of the warrants and verbatim quotes about the grounds for each warrant.

The Sheriff's Department responded to this hyperspecific records request with more government agency boilerplate. It claimed the request was "vague" and "overly broad" and failed to describe an "identifiable record." This deliberate obtuseness will now have to be defended in court. Considering the request, the EFF's arguments aren't that difficult to make. From the filing [PDF]:

In an attempt to learn about Defendants’ use of these devices, EFF sent a request for records relating to six cell site simulator warrants that precisely identified each warrant using the information on the Department of Justice’s OpenJustice website, including the date range of the authorized search, the nature of the investigation, the items to be searched for, and the exact date and time Defendants electronically provided information about them to the Department of Justice.

Defendants refused to comply with the request, claiming that it failed to reasonably describe the records at issue and that the records are exempt from disclosure as records of an investigation under Government Code § 6254(f).

Neither of these is a legitimate justification for failing to provide the records:

The request more than reasonably described the target records. In fact, it uniquely identified the warrants in question, providing the exact time frame covered by the warrant, the exact date and time the Defendants provided information about the warrants to the Department of Justice, and other identifying information. Defendants’ claim in this regard is particularly weak because their own policy – which state law requires them to adopt and make public – requires their personnel to obtain high-level approval for, and then maintain a log of, all warrants like those here at issue. This log must contain the dates that the cell site simulator was used, which would mirror or be contained within the time frame covered by the warrant, and so would allow Defendants to easily identify and locate the requested warrants.

The EFF also points out the Sheriff's Department can't throw a blanket exception over court records -- which are presumptively public. In addition, the California DOJ has specifically instructed the EFF to obtain documents (like these warrants) listed on its OpenJustice website directly from the agency that created them.

Having been forced into openness by legislation, the Sheriff's Department is hoping to maintain some level of opacity even as it continues its record-setting pace for electronic searches of individuals it can even identify. It shouldn't take long for the court to decide the Sheriff's claims about vagueness and broadness are ridiculous. Hopefully, the court won't decide presumptively-public documents like court orders and warrant affidavits can be withheld just because a cop shop says they might reveal cop stuff.

Filed Under: foia, imsi catcher, lawsuit, san bernardino, san bernardino county sherriff's department, stingray
Companies: eff


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  • identicon
    Anonymous Coward, 30 Oct 2018 @ 4:45am

    Eventual charges would be nice

    I'm not holding my breath but assuming these allegations are true, the sheriff department seems to be in violation of multiple state-mandated policies. Seeing the people in charge over there serve actual time and lose their retirements would really be nice though.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Oct 2018 @ 7:46am

      Re: Eventual charges would be nice

      ... this little court case will drag on for 2 years and go nowhere. If Stingray crimes were ever seriously prosecuted... most police agency chiefs nationwide would end up in prison (that ain't ever gonna happen)

      That San Bernadino Sheriff boss is an elected position -- voters could get an honest cop running things, but where would they find one?

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 30 Oct 2018 @ 12:10pm

      Re: Eventual charges would be nice

      Violating someone's statutory rights -- such as FOIA -- under color of law is a misdemeanor for a lone violator and a felony for two or more violators acting together (Title 18, Section 242, US Code).

      Don't sue them, ARREST them.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 30 Oct 2018 @ 12:24pm

        "Don't sue them, ARREST them."

        They're law enforcement, and law enforcement officers don't book their own.

        We'd have to be able to get a special agent team to be able to do that.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Oct 2018 @ 5:19am

    Are we sure it's a typo?

    I mean, cell phones do vibrate.

    reply to this | link to this | view in chronology ]

  • icon
    Gorshkov (profile), 30 Oct 2018 @ 6:33am

    "record-setting pace for electronic searches of individuals it can even identify" should be "record-setting pace for electronic searches of individuals it can't even identify", maybe?

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 30 Oct 2018 @ 11:07am

    The new normal;

    1. Request records under a FOIA.

    2. Get stonewalled/refused/kept waiting/charged a ridiculous fee.

    3. Sue.

    Seems like it would be easier to just skip to step 3.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 30 Oct 2018 @ 12:26pm

      The new normal

      I think you have to go though steps 1. and 2. to have cause to sue.

      Maybe take a different option: hack.

      Post on Wikileaks and serve by torrent while you're at it.

      reply to this | link to this | view in chronology ]

  • identicon
    Wyrm, 30 Oct 2018 @ 10:32pm

    miscommunication?

    > It claimed the request was "vague" and "overly broad" and failed to describe an "identifiable record."

    Maybe the sheriff's department actually meant that the *warrants* were vague, overly broad and failing to describe an identifiable target?
    Granted, that wouldn't help their case, but it would be honest.

    reply to this | link to this | view in chronology ]

  • icon
    jamie james (profile), 5 Jun 2019 @ 11:10pm

    Stingray

    Y was there all these people at 9:00 o’clock with flashlights looking n the back of my truck. I finally noticed that there were cops. And what I kno about them they do what ever there Hart desires.
    Not to side track this story but I have heard that they took a young man to the canyon and beat his ass so bad that he shit his pants but he said the scariest part was when they put a knife to his neck. At first I really didn’t believe it but after meeting these gentlemen in person. Yeah they are pretty bad ass. Like if I could go back n time I think maybe I would be them, u kno a different career. Anywho I’m goin way off the story.
    About 10mins went by, and not sure how long these gentlemen were on my property lookin n back of the truck and over the Fence trying to open the door. I thought for a second, and then said to my self I’m ok they should b leaving soon because if they had a warrant it would’ve been you hear already so I sat back and watch. They must have been about 10 all of them pacing back-and-forth looking for clues signs of who knows what. All of a sudden I hear them inside my house, like if they’re in the kitchen. I jump up off my bed and walked out to the Dining room towards the kitchen.
    Avila put your hands behind your back and after that the hang cuffs were around my wrist. They started to walk me out side and then I see my mother I was like when did she get here. Oh that’s how they must of got in. Mom: take the hang cuffs off off my son, why do u have him in hang cuffs, you told me that he was tied up in side my house and you guys where just making sure there was nothing else wrong with him. You lied to me, I want you guys to leave my property now.
    Sheriff: mam we just need to look around to see if there any guns or drugs here
    Mom: No I want you guys to leave right now I don’t trust you. You already lied to me already.
    Sheriff: mam if you don’t let us n we well have to arrest you.
    Just to let you know this is just half of the story. The other half is detail facts of how they were acting with us.

    I have two more stories that I can tell, no one is better then anyone maybe better at certain things in life. And we all live under the same laws and I kno the consequences for the things I do. I don’t get mad at myself when I have to go to jail or prison. But when u don’t have to go somewhere like that, it’s a new feeling that I haven’t experience yet knowing you are somewhere u can’t do anything about it cuz maybe I can’t afford to get a attorney or what ever the reason would be. And for people to know private of things of my life and for some one to say remarks, that me and my wife would only know. I do apologize if I didn’t make sense to some of you reading this, not very good at being a writer.

    reply to this | link to this | view in chronology ]


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