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ACLU sues for access to APD’s cellphone spying information

A StingRay device mimics a cellphone tower, drawing to it all cellphone use within a certain distance of the device. (Source: U.S. Patent And Trademark Office)

Copyright © 2017 Albuquerque Journal

The Albuquerque Police Department won’t release any information about cellphone spying technology it may – or may not – be using, according to a lawsuit filed Thursday by the American Civil Liberties Union of New Mexico.

The civil rights group requested records, if they exist, about StingRay cellphone tracking devices the department has purchased and about procedures and policies regarding who can use the devices and what steps they must take to use them, such as procuring a warrant.

The devices mimic a cellphone tower, drawing to them all cellphone use within a certain distance of the device. They can be attached to a building, vehicle or drone to scan an area near targets of investigations. Such devices then can track all phones used in the vicinity – not just the target phone – and some devices can listen to conversations and track texts underway on the phones.

Federal and other law enforcement agencies say the StingRay helps them track down terrorists or criminals by allowing them to form a map of where the target has been based on the digital trail their phones leave.

But civil rights and privacy groups, including the ACLU, say the technology isn’t regulated and is being used in secret.

“These devices are incredibly invasive, and the government isn’t being transparent about how they are being used,” ACLU Executive Director Peter Simonson said in an email announcing the filing of the civil lawsuit in state District Court.

“If APD is using Stingrays to snoop into people’s private information, the public has a right to know,” the email said. “We also need to ensure that protections are in place to prevent these powerful tools from being misused or abused.”

APD used an exemption in the state’s open records law to justify denying the ACLU’s inquiries. The exemption allows law enforcement to keep secret documents and information “that reveal confidential sources, methods, information or individuals accused but not charged with a crime.”

The ACLU says the records it requested don’t fit any of these categories.

APD spokeswoman Celina Espinoza said in a statement that the department “follows legal standards with the use of any technology” but couldn’t comment further due to the pending litigation.

The agency’s lawyers hadn’t responded to inquiries about the lawsuit so she could not comment about the claims or about why an agency would not want to disclose records about StingRay use.

The lawsuit seeks to force the city and the police department to turn over any records and pay any damages and costs that are incurred during the suit.

The issue is getting national attention, too.

The U.S. Supreme Court has agreed to hear a case this fall about whether police agencies need a warrant to collect cellphone records related to location. The case could include consideration of how the Fourth Amendment, which protects people from “unreasonable searches and seizures” by government agents, applies to technology and digital information.

The USA Freedom Act was passed in 2015 in response to Edward Snowden’s exposure of the National Security Agency’s bulk collection of phone records as part of surveillance. The law is intended to stop bulk collection, but it does not outright ban it.

At the very least, 13 federal surveillance and law enforcement agencies, including branches of the military and the Internal Revenue Service, use StingRay technology, according to the ACLU. The group has been attempting to catalog the whereabouts and oversight of the surveillance units and their use on Americans during terrorism or other law enforcement investigations.

But the civil rights group has been stonewalled by dozens of police departments, some of them claiming that their purchasing contract with StingRay’s manufacturer prohibits them from acknowledging purchase of a device. Other departments, including APD, argue that any such information about such a device is protected by open records exemptions.