US marshals in Florida seized copies of local cell phone tracking records from the Sarasota Police Department, which the American Civil Liberties Union (ACLU) chapter in the state had requested. The extraordinarily brazen act was a clear violation of public records law. And the ACLU quickly pushed for a temporary injunction from a judge to stop this from happening again.
The ACLU chapter was seeking records on police use of “Stingray” surveillance devices, which can be used to locate cell phone by acting a like a fake cellphone tower. The technology enables the “electronic equivalent of dragnet ‘general searches’ prohibited by the Fourth Amendment,” the ACLU argues.
The organization has already faced law enforcement agencies which behave like the CIA and refuse to acknowledge whether or not they even have public records related to Stingray surveillance used to track cell phones. But this is a clear escalation and shows the extent to which the federal government is willing to go to protect this new form of dragnet warrantless surveillance from public scrutiny.
Nathan Freed Wessler, staff attorney for the ACLU, told Firedoglake the US Marshals Service sent someone to the Sarasota Police Department from an office in Tampa to seize physical copies of the records which had been requested. Marshals “spirited” them out “from under the noses of Florida residents who had a right to them under state public records law.”
In his history of doing “public records work” Wessler had never witnessed the federal government do anything like this.
“We’ve seen efforts by the federal government to meddle in public records requests seeking information about Stingrays, but everywhere else we’ve seen this it’s been in the nature of feeding legal arguments to local prosecutors,” Wessler explained.
Prosecutors would be advised to invoke “federal secrecy laws that don’t apply to states.” Yet, they had always operated within the legal system.
“Here there’s this incredible saga where US marshals swoop in and actually physically grab those records and take them away so that no Florida court can reach them” and so the records are not released to the Florida public.
The ACLU filed an emergency motion [PDF], which seeks a temporary injunction to bar the Sarasota police from allowing US marshals to improperly seize any more records they may still have in their possession. The motion also requests that the court find that the police department violated the state’s public records law.
“Under the state public records law, the moment a state agency receives a records request from a member of the public they must keep those records in their possession for at least thirty days,” according to Wessler.
The ACLU of FL had set up an appointment with the Sarasota Police Department to inspect the records, which is typical under the state’s public records law. However, Wessler said the appointment was canceled hours before it was to take place and the ACLU was informed the US Marshals Service was subsequently informed they were no longer in state custody.
The federal government claims the records should not be public because they were created by a Sarasota detective during his “duties as a Special Deputy with the US Marshals Service.”
Deputization is typical, but what is not typical is how it occurred in this case. According to Wessler, the detective was borrowing federal Stingray gear from the federal marshals for local investigations. The US Marshals Service believes since the detective applied for permission to use the gear, the records are federal records even though he is a state employee and was keeping these records filed in Florida in his office in the Saratoga Police Department.
The ACLU has also discovered that the police department was not properly complying with “open courts law” by not giving copies of records to the courts in Florida. When the organization went to a clerk’s office at a courthouse and requested copies, the court said they had none of the records on applications and proposed orders for surveillance.
Wessler recounted, “The detective had apparently gone in with a single paper copy of an application and a paper copy of a proposed order and he got the judge to sign the order without ever giving a copy to the court, which in itself is a blatant violation of open courts laws and the First Amendment, which guarantees the public a right to access judicial records.”
Meanwhile, the ACLU won a victory in Tallahassee from a judge who ordered the unsealing of a transcript that reveals details on the use of a Stingray device without a warrant in a criminal case which involved a stolen cell phone.
A defense lawyer tried to suppress evidence from the Stingray device used to locate the stolen cell phone by having a detective testify at a hearing, but the government wanted to keep testimony secret. The judge ordered the hearing be closed to the public and the transcript be permanently sealed.
The ACLU uncovered the following:
DETECTIVE: …we were able to locate the phone, or to actually capture the phone to begin with and then a relatively lengthy process of determining exactly where that signal was emanating from.
Using portable equipment we were able to actually basically stand at every door and every window in that complex and determine, with relative certainty you know, the particular area of the apartment that that handset was emanating from…
In other words, the police were going door-to-door in an apartment complex with this cutting edge technology and intruding upon the privacy of tenants as they tried to locate the signal for this cell phone. This activity all took place without any warrant.
Additionally, as detailed at the ACLU’s blog:
…[P]olice used two versions of the stingray — one mounted on a police vehicle, and the other carried by hand. Police drove through the area using the vehicle-based device until they found the apartment complex in which the target phone was located, and then they walked around with the handheld device and stood “at every door and every window in that complex” until they figured out which apartment the phone was located in. In other words, police were lurking outside people’s windows and sending powerful electronic signals into their private homes in order to collect information from within.
The detective estimated this equipment had been used by Tallahassee police “200 or more times” between the spring of 2007 and August 2010.
The testimony also showed that in order to locate the cellphone the police had to “evaluate” all cellphones in the area to figure out which one exactly was the “victim’s cell phone.” That means the data of cell phones used by innocent Floridians nearby was captured by the device in violation of their privacy.