Stingray may limit your free speech beginning now

The legal fight over the use and public disclosure of Stingray, a device that allows law-enforcement agencies to locate cell-phone signals and collect data by acting as a cell-phone tower, is coming to an end.

According to court documents filed in San Diego Superior Court, a lawsuit from the open-government group known as First Amendment Coalition was settled last month and both sides are negotiating the proper amount of attorney’s fees.

Though usually used as a tool by federal law-enforcement agencies, cell-site simulators such as Stingray have been purchased by local law enforcement in recent years as an aid to locate suspected criminals. As the number of agencies using the technology has grown, so, too, have privacy concerns increased from open-government and privacy groups. The problem: while the technology is useful in locating a certain cell-phone signal, it casts an overly broad net, collecting data from hundreds of phones in the immediate area.

Privacy groups have objected to jeopardizing the privacy of a group in an effort to nab just one person. But there are other concerns as well, as raised in the lawsuit from the First Amendment Coalition. While the technology may prove useful in locating and/or capturing suspected criminals, the lack of transparency in how, where, and under what conditions law-enforcement agencies use the technology is troublesome.

For the First Amendment Coalition, their fight began in October 2014, after the San Diego Police Department refused a public records request by the coalition’s executive director, Peter Scheer, to release purchase orders, policy guidelines, grant applications, and court affidavits allowing the use of the cell-phone simulators. The group sued the police department for violating the California Public Records Act in early 2015. Since filing the lawsuit, the First Amendment Coalition and the City of San Diego have fought over what records should be considered open to the public.

In their fight, the First Amendment Coalition managed to wrestle certain information from the San Diego Police Department. During discovery, the police department turned over documents that showed the city, with help from a grant from the Department of Homeland Security, paid Florida-based Harris Corporation $365,000 for the technology. Also confirmed was how capable the cell-site simulators are of capturing text messages and cell-phone conversations.

In January of this year, the United States Attorney General urged the court to rule in favor of the city and the department's refusal to release information about Stingray to the public.

"...[T]his court should find that the [San Diego Police Department] properly withheld the information at issue and deny [First Amendment Coalition's] petition for an order compelling the [police department] to disclose the un-redacted copies of the records at issue," reads the court filing.

"Cell site simulators are important tools in both criminal and national security investigations. Disclosure of the withheld information could harm such investigations by allowing criminals and terrorists to piece together information about cell site simulators' use and capabilities and thereby develop methods to evade them. Based on these concerns, courts have protected this type of information from disclosure, and this court should do so as well."

In 2012, in the weeks after the San Diego Police Department first purchased the technology from the Harris Corporation, the United States Department of Justice followed up with a letter stressing the need to keep the technology safe from the public's eyes.

"Disclosing the existence of and the capabilities provided by such equipment/technology to the public would reveal sensitive technological capabilities possessed by the law enforcement community and may allow individuals who are the subject of investigation wherein this equipment/technology is used to employ countermeasures to avoid detection by law enforcement," reads the letter from a technology expert from the Federal Bureau of Investigation to former assistant chief Cesar Solis.

"This would not only potentially endanger the lives and physical safety of law enforcement officers and other individuals, but also adversely impact criminal and national security investigations. That is, disclosure of this information could result in the [FBI’s] inability to protect the public from terrorism and other criminal activity because, through public disclosures, this technology has been rendered essentially useless for future investigations."

Privacy groups have since gained some ground. In January 2016, a new state law was passed that requires law-enforcement agencies to publicly post policies on their use of cell-site simulators such as Stingray, as reported by the San Diego Union-Tribune.

But the federal government's and San Diego Police Department's desire to keep additional cell-site simulator information secret may not be in jeopardy, according to court documents. On January 28, deputy city attorneys submitted a notice of conditional settlement.

According to First Amendment Coalition attorney Kelly Aviles, the “city ended up turning over almost all of the records that were at issue."

(corrected 3/16, 1:20 p.m.)