Breanna Reeves |
The years’ long struggle between the nonprofit digital rights group, Electronic Frontier Foundation (EFF), and the San Bernardino County Sheriff’s Department (SBCSD) over transparency in relation to cell-site simulators . . . continues.
States Where Police Agencies are Known to Use Cell-Site Simulators
The use of cell-site simulators, also known as stingrays, by law enforcement agencies across the nation, have not only prompted questions about the gross invasion of privacy but also the capturing of data from private citizens who are not the focus of criminal investigations but are in proximity to those who are.
This surveillance technology can not only gather call information, but also texts and most other information sent via cellphones. The alarming rate at which the device has been used by SBCSD also begs the question as to how all the information acquired is being used by law enforcement agencies. The simulator tricks cellphones of suspects and anyone in close proximity to him/her into thinking calls, etc. are being routed through regular cell towers but instead the cellphone activity is being captured by this surveillance technology.
In 2015 California passed legislation requiring that a local public body (i.e., board of supervisors, city council, etc.) approve—at a public meeting—not only the acquisition of the technology but also a policy determining how and when these devices can be used.
The law was recently challenged by the City of Vallejo who failed to comply with its mandates, but in November, the transparency requirements of the 2015 legislation were upheld in state court.
By the time this legislation became law in 2015, however, San Bernardino County had already deployed the technology almost three years before. As such there exists a lack of transparency in the county regarding how and when these devices are being used.
No federal rules or regulations exist
In June 2021, California Representative Ted Lieu, in partnership with Senator Ron Wyden of Oregon, introduced federal legislation that would restrict the use of stingray cell-site simulators.
The Cell-Site Simulator Warrant Act of 2021, would require all law enforcement agencies to first get a warrant establishing probable cause to investigate criminal activity before a stingray is deployed in nearly every instance.
The legislation would further require that any information collected on nearby cellphone users who are not targets of a stingray warrant be deleted.
Following this story
The Black Voice News/IE Voice first reported on EFF’s concerns over SBCSD’s alleged overuse of the technology within the county back in August 2016 and has followed the twists and turns in this quest over the years.
On December 8, the California Court of Appeals granted a motion accepting “Friend of the Court Briefs,” known as Amicus Curiae Briefs in support of EFF filed by the The Neon Law Foundation and joined by the Black Voice News. The California First Amendment Coalition also weighed in as a friend of the court in this case. A date for oral arguments is pending.
“The court will really benefit from the perspective (the brief) brings – they need to understand how the superior court and sheriff’s department are frustrating basic transparency,” Aaron Mackey, counsel for EFF, stated in an email regarding the appeals brief.
This was a small win for EFF in this ongoing saga as approval of this motion indicates the court will consider the right of the public — and the media — to access information regarding SBCSD’s use of surveillance technologies.
Appeals (source: ca.gov).
The long push for transparency
The struggle for the truth began in 2015 when technology publication Ars Technica received documents from SBCSD after requesting public records from the agency. The documents revealed a number of questionable actions regarding SBCSD’s misleading use of a warrant application template and the rate at which stingrays are used.
After the EFF was denied a 2017 public records request to obtain copies of six relevant warrant applications for stingray use in San Bernardino County, EFF filed suit, Electronic Frontier Foundation v. County of San Bernardino et al., suing the county for its failure to grant access to “long-ago executed search warrants and affidavits to allow the public to understand how the San Bernardino County Sheriff’s Department (“Sheriff’s Department”) seeks warrants to deploy a new type of invasive surveillance.”
In January 2021, Black Voice News/IE Voice covered court proceedings in which San Bernardino Superior Court Judge Dwight Moore denied the Electronic Frontier Foundation’s petition to unseal court records initially requested through its lawsuit against SBCSD.
The EFF, however, was not deterred and continued to demand accountability from SBCSD. In September, the nonprofit filed an appeal in the Fourth Appellate District, Division Two against the San Bernardino Superior Court.
The Black Voice News/IE Voice is following the timeline of events as the court makes its decision regarding unsealing the records for the public and media’s assessment and in hopes that the court will set a baseline of transparency regarding this important privacy issue.
Reporters Gail Fry and S. E. Williams contributed to this story.
Follow the timeline of news updates below: