Playing Coy About Government Surveillance: State and Local Governments’ Lackluster Response to Public Records Requests

March 25, 2014

Sure, you have read plenty of stories about the National Security Agency’s controversial surveillance practices. But did you know that state and local law enforcement agencies are also employing controversial surveillance techniques?
Probably not, considering police have remained incredibly secretive about their use, despite numerous requests for information by the media.
Perhaps the most infamous surveillance technology used by federal and local law enforcement is a tracking device called the Stingray. The Stingray, and its newer counterpart the Stingray II act as miniature cell phone towers that trick cell phones into connecting to them. Their small size (approximately the size of a suitcase) allows them to be set up virtually anywhere, such as the back of a police cruiser. They can then be used to collect hundreds of unique identification codes, such as the Electronic Serial Number. Once the police obtain these unique identifiers, they can use them for a variety of purposes, such as tracking the location of an individual phone user in real time.
While the FBI has stated that its use of the Stingray is limited to tracking suspects, the devices have the potential to monitor a phone’s content as well. Though purportedly not used for this purpose, the Stingray has the potential to eavesdrop on conversions and monitor text messages.
Even if the FBI has yet to intercept the content of cell phone conversations, it remains unclear whether local law enforcement agencies are doing so. For example, police have cited the protection of police tactics and trade secrets as reasons for failing to disclose the details of contracts with Harris Corporation, Stingray’s manufacturer. Often, Harris and the police departments using Stingray technology have entered into non-disclosure agreements.
These agreements, however, may be contrary to state public records laws. Investigative reporter Beau Hodai, along with the ALCU, has filed suit (pdf) alleging that the Tucson Police Department violated state public disclosure laws in response to his inquiry into the department’s use of Stingray. Hodai’s complaint reveals that Tucson’s agreement with Harris precluded the city from discussing, publishing, releasing or disclosing any information about the contract without Harris’s written consent. Additionally, the contract requires the police department to contact Harris if it receives a public records request regarding Stingray.
The case could be an early step in the process of reaffirming the importance of government transparency nationwide. If Hodai’s challenge is successful, it will pave the way for similar challenges to police departments nationwide that have failed to fully respond to similar freedom of information requests. Reaffirming our commitment to transparency is especially relevant in light of a recent report that contains some troubling statistics regarding federal compliance with public disclosure requirements. The report indicates that 50 out of 101 federal agencies have not updated their Freedom of Information Act (FOIA) policies since the passage of the 2007 OPEN Government Act despite the act’s mandate that agencies retool their FOIA offices, to include reporting and fee structures.