Sarasota Circuit Judge Charles E. Williams

A city circuit judge dismissed a lawsuit seeking applications to the Florida state court and the state court’s orders, approving the use of “StingRay” devices capable of surveillance of entire communities. But the judge did not resolve the issue of the United States Marshals Service seizing copies of records from the Sarasota Police Department so the American Civil Liberties Union (ACLU) would not be able to get them.

Detective Michael Jackson is, according to US Attorney Sean Flynn of the Justice Department, a “sworn special deputy” of the US Marshals Office. He is assigned to a “federally created regional task force”—the Florida/Caribbean Regional Fugitive Task Force. He was working out of the Sarasota Police Department.

Michael Barfield, who filed the request for records from the Sarasota Police Department and is the vice president of the board of the ACLU of Florida, made an appoint on May 22 to inspect documents, which is not unusual when requesting public records. But, on May 27, the city was notified by a “federal agency” that they were not to release the documents because Jackson was working for the federal government. Barfield’s appointment was canceled and in the next day or two the ACLU was notified that US Marshals had come to the police department and taken copies of records that were removed to another location.

The ACLU believes the US Marshals came and took printed copies and then returned to take possession of electronic copies of documents.

Barfield told Firedoglake, “I’ve been doing public records issues on behalf of the ACLU and other civil rights organizations for more than 30 years. Truly, [I] have never seen anything like that. Colleagues who have been in the business, as long as I have on both the journalistic side and the legal side, have never seen anything like this.”

Yet, when Sarasota Circuit Judge Charles E. Williams issued his order dismissing the lawsuit, there was nothing about this act by the federal government to essentially abscond with documents to prevent them from potentially becoming public. In fact, the judge did not hold an appropriate hearing on the evidence, even though Barfield had wanted one to resolve key issues.

“We were a bit surprised because the judge had entered an order setting a status conference for last Thursday,” Barfield recalled. “And, in that order, he specifically said it’s not going to be an evidentiary hearing. Then, we get to the hearing and the US Attorney makes a lot of factual representations and usually as a matter of professional courtesy at status conferences attorneys don’t get into a swearing contest and say this is what the facts are, particularly when the judge had said it’s not going to be an evidentiary hearing.”

The ACLU is also “mystified” because Williams included in his latest order a statement that suggests the ACLU did not “challenge as a matter of fact to the representation of the United States government as to the status of Detective Jackson.”

“From Day 1, we’ve asked for an evidentiary hearing to get into the record facts as to what capacity he was operating in, and we believe if we had that hearing we would be able to convince the judge,” Barfield declared.

Particularly, Barfield suggested there’s “a memorandum of understanding between the police department and the Marshals, which describes the nature of this cooperation between the agencies and how they assign members to this Task Force.”

“That memorandum of understanding, if it’s similar to others police departments have entered into with the Marshals, says that the originating agency shall retain the records. That’s why we needed a hearing to flesh some of these things out.”

Additionally, according to the transcript of the status hearing, it is not true that Barfield did not challenge any of the so-called “facts” the US Attorney shared with the court.

Flynn said, “As they stand right now, your Honor, they are documents in the possession of the United States and would be covered by the federal housekeeping statute.” The judge then said, “Okay. Any response to that or any rebuttal?”

The exact words said by Greg Thomas, who was there on behalf of Barfield, were, “Well, I think, your Honor, the assertions by the US attorney, we don’t know, just because he was a special deputy, whether in fact—he went to a—rather than a United States district judge in Tampa, he went to a sitting circuit judge in this county and asked for relief for the ‘StingRay’ application.”

Later, Thomas also stated, “We should have an opportunity to address the issues for your Honor’s consideration.”

Nate Wessler, a staff attorney for the ACLU, detailed how the surveillance works:

Cell site simulators, also known as “stingrays,” are devices that trick cellphones into reporting their locations and identifying information. They do so by mimicking cellphone towers and sending out electronic cues that allow the police to enlist cellphones as tracking devices, thus revealing people’s movements with great precision. The equipment also sends intrusive electronic signals through the walls of private homes and offices, learning information about the locations and identities of phones inside. Initially the domain of the National Security Agency (NSA) and other intelligence agencies, the use of stingrays has trickled down to federal, state and local law enforcement. In one Florida case, a police officer explained in court that he “quite literally stood in front of every door and window” with his stingray to track the phones inside a large apartment complex…

This is what the federal government is trying to keep concealed. It involves activity that undermines privacy under the Fourth Amendment and yet the federal government would prefer all Americans just accept police are using this new technology, which gives them a great capacity to engage in dragnet surveillance and collect—without a warrant—the private data of individuals who are not targets of any investigation.

The judge did order the ACLU to file applications for ‘StingRay’ surveillance with the Florida state court under seal. However, according to Barfield, the federal government “may not comply with the order. They did not seem to think the judge could order them to do anything and even implied they could “remove the case to federal court.”

So, maybe, they will file the records with the state court and, if so, the ACLU will move to have the records unsealed so the public can see them.

The extraordinary conduct of the federal government to circumvent public records laws is possibly a result of concern that they would not win the lawsuit. The ACLU won in a Tallahassee court and a transcript that contained details on how Tallahassee police had used “StingRay” surveillance in a criminal case was released, despite the fact that the federal government had invoked the Homeland Security Act to keep it secret.

An appeal is being considered and next steps are likely to be announced today.