A state judge Tuesday ordered the Erie County Sheriff’s Office to release information about its acquisition and use of cellphone-tracking devices to monitor users and their locations.
State Supreme Court Justice Patrick H. NeMoyer issued the order in response to a legal action filed by the New York Civil Liberties Union after the Sheriff’s Office denied its request under the Freedom of Information Law for records on the devices known as Stingrays.
NYCLU staff attorney Mariko Hirose, lead counsel on the case, welcomed the ruling. “The court today has confirmed that law enforcement cannot hide behind a shroud of secrecy while it is invading the privacy of those it has sworn to protect and serve,” she said.
“The public has a right to know how, when and why this technology is being deployed. They deserve to know what safeguards and privacy protections, if any, are in place to govern its use.”
Erie County Attorney Michael A. Siragusa said Sheriff Timothy B. Howard will review the 24-page ruling with outside counsel to determine the next step.
The NYCLU filed the information request in June, a month after Howard acknowledged to county legislators that specially trained deputies have been using Stingrays since 2008. He told them that it was up to the courts and not legislators to provide oversight on use of the devices.
Howard said the devices are used only for tracking a person’s movements, not for checking content of phone communications. He said that use of the devices in criminal investigations is always part of a judicial review.
The Sheriff’s Office denied the NYCLU’s information request in July. The civil liberties group filed an appeal but got no response in the required 10 business days.
The NYCLU filed the legal action in November, seeking records on the Stingrays, including invoices, contracts, loan agreements and communications; policies and guidelines governing their use, the number of investigations in which they were used and the number that resulted in prosecutions; and any court applications for authorization to use Stingrays or other cellphone-tracking devices.
“The Sheriff’s Office has spent more than $350,000 since 2008 on this surveillance equipment – it is ridiculous for them to suggest they have no paperwork or records on the matter,” Hirose said at the time.
She also questioned the sheriff’s contention that the information the NYCLU was seeking could reveal criminal investigative techniques or endanger the life or safety of a person. She said the information “will enhance the public’s understanding of the sheriff’s use of Stingrays.”
The NYCLU said the surveillance devices were developed for military use and are about the size of a briefcase. It said the devices mimic cellphone towers and surreptitiously prompt cellphones in their vicinity to deliver data to them.
The NYCLU said the devices raise “significant privacy concerns” under the Fourth Amendment to the U.S. Constitution and provisions of the State Constitution, both of which prohibit unreasonable searches and seizures.
In legal papers filed in January, the Sheriff’s Office said the information sought is exempt from disclosure under the Freedom of Information Law because it would improperly reveal criminal investigative techniques.
The FBI also opposed the request, contending that disclosing the information “would allow criminal defendants, criminal enterprises, or foreign powers, should they gain access to the items, to determine law enforcement’s techniques, procedures, limitations and capabilities in this area.”
NeMoyer noted that when the Sheriff’s Office filed its papers in January, it also disclosed some records that the NYCLU was seeking but that they contained many redactions.
As a result, NeMoyer ordered the sheriff to turn over unredacted copies of:
• Purchase orders “of a Kingfish system, a Stingray system, and the proprietary software for each, as well as training classes, from the Harris Corp. (a Florida-based electronics firm) on three different dates in 2008 and 2012 for a total price of about $350,000.”
• Copies of a June 5, 2012, letter from a Harris representative to the sheriff, which advertised the equipment and software in question, and a June 29, 2012, letter from an FBI agent to the Sheriff’s Office, setting out a “non-disclosure agreement” as a condition of the sheriff acquiring and using the Stingray system.
• Reports on the office’s use of the Stingray system between May 1, 2010, and Oct. 3, 2014, to track cellphones.
NeMoyer said that he reviewed the reports and that most of them “set forth or suggest that the cellular tracking was carried out for the purpose of criminal investigation, i.e., to locate a suspect or fugitive or even a crime victim.”
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