The Sacramento County Sheriff's Department may be keeping judges, prosecutors and the public in the dark about the use of a controversial electronic surveillance tool known as the StingRay, according to new information obtained by News10.
Despite evidence showing the sheriff's department is utilizing the device, the Sacramento County District Attorney's Office and Sacramento Superior Court judges said they have no knowledge of StingRays or similar tools being used in Sacramento.
This revelation is concerning to privacy advocates and defense attorneys. They say the intrusive nature of the device, which tracks people in their homes and collects data from third parties, requires a search warrant. The fact that judges and prosecutors haven't heard of this use could indicate that warrants to use a StingRay aren't being obtained.
The district attorney's office said they would expect to see a search warrant for any device capable of real-time location tracking.
"We request a search warrant in all of those cases," Sacramento County Chief Deputy District Attorney Steve Grippi said. He said while warrants for a wiretap or GPS tracking devices are fairly common, he has never seen a Stingray warrant.
The sheriff's department won't acknowledge they own the surveillance tool or talk about how it works. They also won't discuss who is targeted with it or what oversight mechanisms are in place to govern its use.
A News10 investigation in March showed the spying device is being used by at least nine local law enforcement agencies in California, from San Diego to Sacramento.
A StingRay is a brand of IMSI (International Mobile Subscriber Identity) catcher, a device that mimics a cell tower and attracts all wireless phone signals within a certain radius into connecting with it. Authorities can use it to track the location of phones in real time, as well as the unique ID and phone numbers of all connected phones and the numbers dialed by a connected phone. That includes the phone numbers of outgoing calls and text messages.
StingRays also can be configured to capture the content of calls and texts connected to the device, although Harris Corporation, the maker of Stingray and similar products, said devices used by law enforcement don't have that capability.
Linda Lye, a staff attorney for the ACLU of Northern California, spent several years battling federal and local authorities for StingRay records. Lye reviewed documents and other evidence obtained by News10 and believes the Sacramento County Sheriff's Department is almost certainly using a StingRay, and likely with little to no oversight.
"There's no California law governing how StingRays are to be used," Lye said. "It means law enforcement is using them under rules that they have unilaterally written."
Over the past six months the sheriff's department has denied multiple requests from News10 to discuss the technology. News10 submitted a records request to the sheriff's department in October 2013 asking for contracts, agreements, invoices, purchase orders or maintenance contracts signed with Harris Corporation.
The sheriff's department responded by providing a purchase order for a "High Powered Filtered 25W PA Kit (CONUS)" costing $11,500, but said they had no other responsive records or documentation specifically related to a StingRay device.
Procurement documents from the Florida Department of Law Enforcement describe the "High Powered Filtered 25W PA Kit (CONUS)" as a signal amplifier for a StingRay device.
In early February, News10 obtained StingRay records from the San Jose Police Department. San Jose was interested in purchasing a StingRay from the Harris Corporation and discussed the device with other law enforcement agencies already using it - including the Sacramento County Sheriff's Department.
"The Harris Corporation is a government contractor and the sole supplier of this technology and type of product line," stated a San Jose Police Department grant application requesting Department of Homeland Security funds to purchase a StingRay. "The Harris Corporation is bound by Title 18 USC 2512 and is protected under non-disclosure agreement and federal law. Research of the product consisted of testing by San Jose Police and technology and equipment feedback from the U.S. Marshals Service, [Redacted], the Oakland Police Department, the Sacramento Sheriff's Department, the San Diego Sheriff's Department, the Los Angeles Police Department, and the Los Angeles Sheriff's Department."
"While I am not familiar with what San Jose has said, my understanding is that the acquisition or use of this technology comes with a strict non-disclosure requirement," Sacramento County Undersheriff James Lewis said in a written statement. "Therefore, it would be inappropriate for us to comment about any agency that may be using the technology."
Privacy advocates such as the ACLU and the Electronic Frontier Foundation argue that a non-disclosure agreement between the sheriff's department and a private corporation is not a valid reason to withhold public records.
"Government agencies cannot enter into private contracts in order to evade their statutory obligations," Lye said.
The sheriff's department later refused to release additional records requested by News10, citing several federal regulations, including the Freedom of Information Act, the Homeland Security Act, International Traffic in Arms Regulations and the Arms Export Control Act.
Lye reviewed the department's justification to withhold public records and said she believes their justification is invalid. The arms trafficking exemptions, she said, don't apply to StingRays.
"In order to be protected under that, there would have to have been a determination that they're on the U.S. munitions list, and they're not," Lye said.