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MIAMI, FL — Police departments around the country increasingly are using sophisticated technology to surveil American citizens by monitoring cellphone data, in many cases carefully hiding those activities from the public and the press.
The American Civil Liberties Union, along with The Associated Press and USA Today, have all done important work recently to shine a light in the surveillance shadows. Local news outlets, including some here in Florida, have also done valuable reporting on the use of the technology, which offers investigative benefits but also raises constitutional concerns.
It’s vital that a close look at these surveillance practices continues. Local journalists in particular have an opportunity to serve their readers by building on the work that’s been done—work that has raised serious questions about an area of high public interest, and already has had demonstrated impact.
But it’s vital, too, to understand the government secrecy that has surrounded these techniques—and how the relationships between local police and state and federal agencies, which sometimes supply the equipment, challenge public records laws. It’s going to take a multipronged media attack to get around that secrecy and learn more about what law enforcement agencies at all levels are doing.
Here in Florida, it’s not clear just what information about the technologies is covered under the state’s strong public records law. Records requests have produced a variety of responses, many of them not especially forthcoming.
But it is clear that federal law enforcement is playing a key role in maintaining a shroud of secrecy. On Tuesday, a state trial judge here dismissed an action by the ACLU to obtain police documents about use of the surveillance technology under the state public records law, in part because a local detective had been deputized by the US Marshals Service. On Thursday, emails came to light revealing that police in the same judge’s jurisdiction had sought to conceal use of the technology in court records concerning local investigations—apparently at the behest of the Marshals Service.
The emails bolster the conclusion of a recent AP article: “The Obama administration has been quietly advising local police not to disclose details about surveillance technology they are using to sweep up basic cellphone data from entire neighborhoods.”
David Cuillier, president of the Society of Professional Journalists, put it more bluntly: “The feds are completely out of control on this issue, gaming the system and corrupting it to keep their program secret.”
StingRays as “confidential sources”
The technology in question consists of devices like the StingRay, manufactured by Harris Corp., that essentially function as portable faux cell towers—allowing law enforcement officers to get detailed information about the location and use of individual phones, though not the content of communications.
Civil-liberties and privacy advocates object to the widespread use of the devices, especially without court warrants, and are seeking information about their use to spur public debate. The ACLU has filed public records requests with 37 law enforcement agencies in Florida. (Disclosure: Jonathan Peters serves on the board of the ACLU of Ohio, which had no connection to the events in Florida.)
Responses to those requests varied: state police have claimed the records are exempt under state law; in one case, a local department refused to confirm or deny the existence of such records. But the most remarkable response came from the Sarasota Police Department, which in May was poised to release to Michael Barfield, vice president of the ACLU of Florida, records concerning applications and orders related to the department’s use of surveillance devices.
However, hours before the scheduled release, the records were instead seized by the Marshals Service, which had intervened to claim the records as its own, as the Sarasota Herald-Tribune reported. The federal agency said it had deputized the Sarasota officer who created the records, and therefore they were federal property not subject to state public records law.
“It certainly got my attention,” Barfield told CJR. “I’ve never had that happen before.”
Scott Ponce, a Miami-based media lawyer at Holland & Knight, described the intervention as “gamesmanship,” adding, “We deal frequently with state agencies giving copies of documents to federal agencies, and incorrectly claiming that something about the transfer makes them exempt from state public records law, but I have never seen the transfer of the creator of the records.”
A state trial judge, however, saw things differently.
Judge Charles E. Williams, of the Twelfth Judicial Circuit for Sarasota County, on Tuesday dismissed an action brought by Barfield and the ACLU to compel the production of the records. Williams said he lacked jurisdiction because the Sarasota officer had been deputized and “assigned to a federally created regional task force,” and the state public records law doesn’t apply to “records maintained by [the Sarasota officer] while operating in his capacity as a sworn federal law enforcement agent.”
But the order was mostly conclusory, with light analysis and few factual findings. For example, it didn’t address when the Marshals deputized the officer. To claim the records exclusively as its own, the Marshals Service would have had to deputize the Sarasota officer before he created the records, and show that none of the records was created in connection with the Sarasota police’s official business. Maybe that case can be made, but it’s not evident from Williams’ order.
Barfield said he and the ACLU plan to appeal Williams’ order, to Florida’s Second District Court of Appeals, and that he anticipates filing next week.
Meanwhile, in a remarkable development, Barfield has made follow-up records requests with the Sarasota police, asking for emails containing certain keywords, such as “trap and trace,” a reference to surveillance devices and processes. He recently received a response that included a 2009 email between a Sarasota sergeant and the chief of another department that showed how far the government will go to keep secret the use of StingRay-type devices. Here’s an excerpt (emphasis added):
As you are aware for some time now, the US Marshalls [sic] and I believe [the Florida Department of Law Enforcement] have had equipment which enables law enforcement to ping a suspects cell phone and pin point his/her exact location in an effort to apprehend suspects involved in serious crimes. In the past, and at the request of the U.S. Marshalls, the investigative means utilized to locate the suspect have not been revealed so that we may continue to utilize this technology without the knowledge of the criminal element. In reports or depositions we simply refer to the assistance as “received information from a confidential source regarding the location of the suspect.” To date this has not been challenged.
The email, which was reported late Thursday by the Sarasota Herald-Tribune and Wired.com, in addition to the ACLU, goes on to say that “it is unnecessary to provide investigative means to anyone outside of law enforcement, especially in a public document.” If this practice remains in effect and unchallenged, it will be interesting to see how Florida judges—who might understand “confidential sources” to refer to people, not machines—will handle what on the surface seems, at the very least, deceptive. The Marshals Service did not immediately respond to a request for comment.
The problem of nondisclosure agreements
The secrecy surrounding StingRays isn’t just about Sarasota, or the Marshals. USA Today reported June 13 that Harris Corp. has been referring questions about particular uses of StingRay devices to individual police departments, which have in turn sometimes refused to release information because they say they signed a nondisclosure agreement with Harris when purchasing the devices.
The few publicly available agreements vary slightly, but in general they prohibit the disclosure of information about the use of certain Harris products in police operations and investigations, including any results derived from those uses that would constitute a “release of technical data.”
That’s problematic because courts in Florida and elsewhere generally treat nondisclosure agreements between government and private entities as irrelevant under public records law—unless, say, the agreement does nothing more than make confidential the type of information already exempt under the law. The policy rationale is prophylactic: To honor broad nondisclosure agreements would invite government agencies to create such agreements pro forma just to make confidential more information than not. That would offend basic principles underlying public records laws.
Notably, a nondisclosure agreement between Harris and the Florida Department of Law Enforcement—the state police—says it must be interpreted to comply with Florida law. But, according to the Tallahassee Democrat, which has been pushing this story as hard as any paper here, it also says if a court orders the FDLE to disclose information covered by the agreement, “the agency shall use its best effort to make such disclosures in a manner that provides maximum protection.” That’s troublesome not only for the reasons above but also because it conflicts with numerous Florida judicial commands that the public records law must be liberally construed.
For its part, the FDLE has said its agreement with Harris does not affect how the agency handles information about StingRay-type devices—because it has a superseding nondisclosure agreement with the FBI. According to that March 30 report in the Tallahassee Democrat, that arrangement requires the FDLE not to divulge “any of the investigative strategies, tactics or technical aspects of the technology.” But it’s unclear how that agreement actually affects the FDLE’s handling of surveillance information.
In addition to local departments, the ACLU sought StingRay-related records from the FDLE. Interestingly, the agency’s March 18 response didn’t cite the FBI nondisclosure agreement—but it did claim the records were “generally exempt” under provisions in state law relating to data processing software; surveillance techniques, procedures or personnel; criminal justice information derived from federal or state information systems; and the exchange of federal criminal history records and information.
Without knowing more—the FDLE didn’t explain why it claimed the exemptions it did or how they applied—it’s difficult to evaluate the merits of that case. Which may be the point. In the meantime, this sort of stance obviously makes reporting on these techniques more difficult.
Reporters: keep digging, asking questions
Despite these hurdles, sharp local reporting has brought some information to light—and even prompted some police departments to review their practices.
After the ACLU filed its requests, the Tallahassee Police Department initially refused to release any information, but Jennifer Portman, of the Tallahassee Democrat, began asking questions about the department’s use of StingRay devices—and ultimately her reporting prompted the police chief to create a policy requiring a quarterly review of the technology’s use. The revised rules also call for court orders to be obtained, “if possible,” before the tracking devices are used.
“Until I started asking, [the police] really weren’t sure how often they had used [StingRay devices],” Portman told CJR. “They had to create a spreadsheet to figure that out.
“The key is to begin asking the questions to let law enforcement agencies know that we care and we want to know,” she added. “This is really powerful technology that can track you to within a few feet of your apartment door.”
Portman’s reporting was the key that unlocked the Tallahassee records, according to ACLU attorney Nathan Freed Wessler. Wessler also intervened in a criminal case there in which testimony about the department’s use of StingRay devices had been sealed. He got the testimony unsealed, revealing, as Portman reported, that Tallahassee police officers had used the device in an apartment complex, going from window to window to pinpoint exactly which room a cellphone was in.
Just as Portman and other Florida reporters were working the local story, the AP’s Jack Gillum and Eileen Sullivan took the broader view in a June 12 article that focused on federal involvement in local open records proceedings. Sullivan told us that the AP, which filed more than a dozen records requests around the country, plans to keep pushing for more information. “There are a lot of unanswered questions,” she said. “We’re still not sure how this technology works. We’re not sure what the FBI’s involvement is.”
And no one is sure how many local police departments are using it, a question that reporters in Florida and elsewhere should be asking persistently. Wessler said the ACLU’s requests cover only a few of the more than 300 law enforcement agencies in Florida. Some may have bought their own cellphone monitoring devices while others may be borrowing them from the FDLE, the FBI, or other agencies.
As for reporters in Florida and elsewhere, the ACLU has posted a map showing what agencies it has been able to prove use the devices. Even where use is known to happen, there are plenty of questions about the details, of course—but there are vast areas of the map no one has investigated.
“There are lots of spots on the map that are not filled in—not because nobody has this technology but because nobody has dug up the records,” Wessler said.
Jonathan Peters reported from Kansas. Greg Marx contributed reporting from New York.
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