(update below)

Local police in Florida are essentially conspiring with the US Marshal’s Service to keep details related to their use of cell phone tracking devices in criminal investigations secret, according to internal emails from the Sarasota Police Department released to the American Civil Liberties Union (ACLU).

“StingRays,” according to ACLU staff attorney Nate Wessler, 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 use of the technology raises key privacy issues, particularly whether this type of blanket surveillance of communities without a warrant to catch criminal suspects violates the Fourth Amendment.

In an email sent on April 15, 2009, which the ACLU obtained, Sarasota Police Sergeant Kenneth Castro informed North Port Police Department Chief Terry Lewis that he had received a phone call from one of the department’s detectives, Tom Laughlin, who was assigned to the US Marshal’s Task Force in Tampa. Craig Schaeffer, the Assistant State Attorney in Sarasota, advised Laughlin they had received a “probable cause affidavit” in a North Port Police Department case, which outlined the “investigative means used to locate the suspect.”

“As you are aware for some time now,” Castro advised, “the US Marshalls [spc] and I believe [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.’”

Castro added, “To date this has not been challenged, since it is not an integral part of the actual crime that occurred.”

Schaeffer, a state government official, was concerned that by revealing the “equipment that enabled” a detective to locate a suspect, it might “jeopardize future investigations attempting to locate fugitives.” That led Castro to suggest that a new “probable cause affidavit” be filed and the old one be sealed. He also recommended that detectives be instructed that it is “unnecessary to provide [the] investigative means to anyone outside law enforcement, especially in a public document.”

Five days later, North Port police officer Robert Estrada replied, “Sgt. Castro, we have changed the PCA within the agency after consulting with the SAO [State Attorney's Office]. The [probable cause affidavit] that was already within the court system according to the SAO will have to remain since it has already been submitted. At some point and time the SAO will submit the changed document as an addendum.

“We have implemented within our detective bureau to not use this investigative tool on our documents in the future,” Estrada informed Castro. To which Castro responded, “Your attentiveness to this issue is greatly appreciated.”

What the emails confirm is that in applications for warrants in state court in Florida the methods of surveillance are being deliberately concealed. The local police are using US Marshal’s Service surveillance gear and avoiding the disclosure of details related to the technology and cooperation by using a phrase intended to diminish the significance of the surveillance in cases.

As Wessler commented, “Concealing the use of stingrays deprives defendants of their right to challenge unconstitutional surveillance and keeps the public in the dark about invasive monitoring by local police. And local and federal law enforcement should certainly not be colluding to hide basic and accurate information about their practices from the public and the courts.”

Elected government officials should not be colluding to conceal evidence of surveillance either.

Theoretically, Florida state officials could look at past probable cause affidavits and see all the times that police concealed the nature of surveillance in a case by finding the phrase “received information from a confidential source regarding the location.”

How common or prevalent is this phrase? Is this phrase only used by local law enforcement in Florida or do other police departments employ this string of words to shield their departments from scrutiny?

It has previously been reported that police were concealing details of “StingRay” surveillance at the request of the Harris Corporation, which manufactures the devices.

Furthermore, the emails make what happened in the case of the US Marshal’s Service, which physically seized copies of records containing “StingRay” surveillance details from the Sarasota Police Department, even more alarming.

Michael Barfield, vice president of the board of the ACLU of Florida who made the records request, said, “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.”

The Justice Department claims the records were not state records that could be disclosed under Florida’s “Sunshine Law” because the detective who created the records is assigned to a “federally created regional task force”—the Florida/Caribbean Regional Fugitive Task Force. He doesn’t work for the Sarasota Police Department. He just works out of the Sarasota Police Department.

Given these internal police emails, is this arrangement deliberate so that details of surveillance are not disclosed to the public? To keep records from the reach of a “Sunshine Law” that is a fairly strong public records law?

Unfortunately for the ACLU, a Sarasota City Circuit judge, Charles E. Williams, decided not to appropriately resolve the issue of the seizure of records and ruled that the records could not be released because they were federal government records.

Update

Former magistrate judge in south Texas tells Ars Technica concealing “StingRay” use is “extremely bad”:

“It supports my concern that the federal government is presenting applications for stingrays that may be misleading or not adequately notify the magistrate judge what the application is actually seeking in terms of electronic surveillance,” Brian Owsley, now a law professor at Texas Tech, said.

“The idea of attempting to seal an old probable cause affidavit and reissuing a new one that attempts to conceal certain facts or circumstances strikes me as potentially fraudulent or that the attorneys appearing in state court may be committing a fraud upon the court,” he said. “If this were to be the case, that is an extremely serious matter in which attorneys could be sanctioned or reported to state bar officials and law enforcement officials could be held in contempt or sanctioned in other manners.”