S. E. Williams |
On December 20 we reported that the Black Voice News had joined an Amicus Curiae Brief (known as a friend of the court brief) seeking transparency in the use of cell site simulators—commonly referred to as stingrays—by the San Bernardino County Sheriff’s Department.
The brief was filed in conjunction with the Neon Law Foundation in support of a years’ long legal effort by the Electronic Frontier Foundation (an international non-profit digital rights group focused on protecting citizens’ rights to privacy) to require the department to comply with public records requests on specific cases where the technology was purportedly used. The ACLU also filed a separate Amicus Curiae brief in this case.
The San Bernardino County Sheriff’s Department has earned recognition for having deployed more stingrays than any other local police agency in the nation and yet it remains opaque and unresponsive to public records requests related to its use of warrants and stingray deployment.
The Black Voice News believes it is imperative for the courts to establish a baseline of disclosure for police agencies like the San Bernardino County Sheriff’s Department. It appears because stingrays were already in use here in the county when California passed transparency requirements for their use in 2015—San Bernardino’s use of the technology remains shrouded.
We believe the department should, at the very minimum, be required to comply with the state’s requirement to engage in public debate about their use of stingrays or publish policies explaining how they are used as there are important questions that remain unanswered like: What happens to all the phone calls and texts of people who are not the subject of investigation but whose communications are swept up if they happen to be in an area where a stingray is deployed because the briefcase-sized device not only helps locate a suspect it also scoops up information from other phones in the vicinity—this includes calls and texts?
Another important question is whether stingray warrants are appropriately closed according to the California Penal code which states in part that a “warrant shall be executed and returned within 10 days after date of issuance…not to exceed 30 days from the date the warrant is issued.” Or is the department holding these warrants open illegally?
Last summer U.S. Senator from Oregon Ron Wyden co-sponsored a bipartisan bill called the Cell-Site Simulator Warrant Act of 2021. The law would establish federal requirements for stingray deployment similar to the California law. However, it would also require federal law enforcement agencies to provide annual reports about how the devices were used.
“Cell site simulators have existed in a kind of legal no-man’s land for far too long,” Wyden said in a statement when the legislation was introduced. He went on to explain how the legislation would replace “secrecy and uncertainty with what he defined as “clear, transparent rules for when the government can use these invasive surveillance devices.”
Perhaps the California legislature should revise the California Electronic Communications Privacy Act to require police agencies to submit an annual report about how the devices were used and making the requirement for public engagement and transparency retroactive to include departments like San Bernardino who are taking advantage of what appears to be a loophole in the law. Compliance in both regards should be mandatory with consequences for failures to comply.
Of course, this is just my opinion. I’m keeping it real.