Tucson police sued for using cellphone data surveillance

2014-03-16T00:00:00Z Tucson police sued for using cellphone data surveillanceBy Patrick McNamara Arizona Daily Star Arizona Daily Star

A surveillance system police use to collect data from cellphones has sparked controversy in many states and now has become the subject of a lawsuit in Tucson.

Tucson police paid $408,000 in 2010 for mobile surveillance systems from the Florida-based Harris Corporation. The Stingray systems mimic cellphone towers and let police track the movements of a specific phone — which can help them locate a suspect.

Privacy advocates and legal groups have raised concerns about the use of such systems because they not only collect data from the targeted cellphone, but potentially from others in the area.

“The problem with Stingray is it enables police to do broad searches,” said Hanni Fakhoury, staff attorney with the San Francisco-based Electronic Frontier Foundation.

The systems subvert Americans’ constitutional protection against unreasonable searches and seizures, Fakhoury said.

“This surveillance is really the type of blanket surveillance that the Fourth Amendment was designed to eliminate,” he said.

The Tucson suit, filed in Pima County Superior Court by local freelance investigative reporter Mohamad Ali “Beau” Hodai, said Stingray systems are capable of collecting data from thousands of cellphone users at a time, intercepting metadata and mining information from cellphones over wide areas.

Tucson Police officials would not comment on the lawsuit, but said the Stingray systems are used with the best interest of the public.

“Whatever is required by law is what we abide by,” said Brandon Tatum, a department spokesman.

Tatum said police use the system sparingly, and that any information the surveillance systems collect unrelated to a specific investigation is discarded.

Tucson City Attorney Mike Rankin said the technology tracks only phone numbers, not the names of the owners.

”This is sort of sensitive information and you don’t want to be stockpiling cellphone numbers,” Rankin said. “It gets used during the course of an investigation and if it gives them some useful information, then the cops will go off and try to find that person.”

He also said the tracking technology doesn’t generate a paper trail for police to store and access at a later time.

“There’s no stockpiling. There’s no printout. There’s no database generated,” he said.

Civil libertarians aren’t convinced.

“If there is no paper trail, it’s because they don’t want to create one,” Fakhoury said.

Privacy advocates and civil libertarians have raised concerns across the country about whether law enforcement agencies  need a warrant before using surveillance systems like the Stingray.

Records requested

Fakhoury said police have been secretive about the use of surveillance systems and little if any case law exists to provide legal guidance.

Arizona has safeguards  to prohibit abuse, Rankin said. Unless there is an imminent threat, TPD must seek a warrant or similar court order, he said.

He described the system’s use as a tool akin to a “doorbuster” more than a data-stockpiling device.

Hodai’s lawsuit against the city of Tucson and Tucson Police Department demands the release of documents associated with the Stingray. He wants TPD to honor requests he has made for records, emails and other communications  regarding the purchase and use of the equipment.

“They’ve made it clear they’re not going to respond,” said Daniel J. Pochoda,  an attorney with the American Civil Liberties Union Foundation of Arizona who filed the suit on behalf of Hodai.

Hodai, who declined to comment for this story because he’s still working on his own story about the issue, made three public records requests specific to the use of the Stingray systems in late 2013.

Tucson police did provide some of the documents he requested, including a contract to purchase the equipment, a nondisclosure agreement with Harris Corp.; and an email exchange with a Harris representative who advised TPD on what information should be redacted from the requested material.

The lawsuit essentially accuses police of using a nondisclosure agreement with Harris, the surveillance system maker,  to break Arizona Public Records Law.

Two exemptions

The nondisclosure agreement reads, in part: “The City of Tucson shall not discuss, publish, release or disclose any information pertaining to the Products covered under this NDA to any third party individual, corporation, or other entity, including any affiliated or unaffiliated State, County, City, Town or Village, or other governmental entity without the prior written consent of Harris.”

The agreement goes on to say the city should not release any information Harris considers confidential and it should let the company challenge public records requests in court.

The ACLU argues such agreements improperly let a private company decide what constitutes a public record and gives local governments a blanket exemption to public records law.

“The fact that you have an agreement to not disclose cannot be a sufficient exemption,” Pochoda said.

The city’s agreement with Harris cites two specific exemptions under the federal Freedom of Information Act. The first concerns business trade secrets or other confidential information. The second includes information compiled for law-enforcement purposes. That exemption permits nondisclosure if releasing the information would interfere with law enforcement proceedings or would disclose techniques for law-enforcement investigations or prosecutions.

Rankin said the city’s contract doesn’t subjugate it to the whims of a corporation.

“But we did honor the nondisclosure agreement and ask them if they were going to identify any information they felt was confidential or proprietary and therefore not subject to release under public records law,” Rankin said.

He said the city hasn’t allowed Harris to dictate the terms when it comes to public records.

Star reporter Darren DaRonco contributed to this report.

Contact reporter Patrick McNamara at 573-4241 or pmcnamara@azstarnet.com. On Twitter @pm929. 

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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