The New York Civil Liberties Union is seeking a court order directing the Erie County Sheriff’s Office to release information about its use of cellphone tracking devices to monitor users.
The NYCLU filed the legal action in State Supreme Court after the Sheriff’s Office denied its request under the Freedom of Information Law for records on the acquisition and use of the mobile devices known as Stingrays.
“The Erie County Sheriff’s Department cannot hide behind a shroud of secrecy when it is in fact invading the privacy of the communities it has sworn to serve and protect,” said John A. Curr III, director of the NYCLU’s Western Regional Office.
“This advanced surveillance technology raises serious concerns regarding the tracking of innocent people, and the public has a right to know how and when such invasive techniques will be employed.”
The Sheriff’s Office on Monday declined to comment on the legal action, referring any questions to the County Attorney’s Office, which is expected to file legal papers responding to the action by Friday.
Sheriff Timothy B. Howard has acknowledged that specially trained deputies have been using Stingrays since 2008. He told Erie County lawmakers at a committee hearing in May that it was up to the courts and not legislators to provide oversight on how the devices are used.
Howard said the devices are used only for tracking a person’s movements, not for snooping into the content of phone communications. He also said use of the devices in criminal investigations is always part of a judicial review.
Howard declined to say much more to lawmakers about the surveillance equipment, citing concerns that such information would be useful only to criminals seeking to circumvent the devices.
The NYCLU filed its FOIL request in June. The Sheriff’s Office denied the request in July, and the civil liberties group filed an appeal, but it said it received no response in the required 10 business days, amounting to a denial of the appeal. It filed the court action last month.
The NYCLU is seeking records on the Sheriff’s Office’s acquisition of Stingrays, including invoices, contracts, loan agreements and communications; policies and guidelines governing the use of Stingrays; 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.
In denying the NYCLU’s information request, the Sheriff’s Office made no distinction between documents it has and documents that simply do not exist, the NYCLU says.
“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,” said NYCLU staff attorney Mariko Hirose. “The blanket denial of our entire request, without any explanation, only underscores their wholesale disregard for the right to privacy.”
She also questioned the sheriff’s claim that the information the NYCLU is 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 says the surveillance devices were developed for military use and are about the size of a briefcase. It says the devices mimic cellphone towers and surreptitiously prompt cellphones in their vicinity to deliver data to them.
“Armed with Stingrays,” it says, “law enforcement can – without any assistance or consent from cellphone carriers – pinpoint a person’s location in the home, in a place of worship or in a doctor’s office, collect the phone numbers that a person has been texting and calling, and in some configurations, intercept the contents of communications.
“Stingrays also can be used to conduct mass surveillance on people in an area, whether for a protest or a lecture or a party,” it says. “Even when used to target a particular suspect, Stringrays sweep up information about innocent individuals who happen to be in the vicinity.”
The NYCLU says 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.
It notes that courts in Texas and California have rejected applications by the federal government to use the devices with court orders short of a warrant.
Other attorneys involved in the case are Robert Hodgson and Christopher Dunn of the NYCLU and John Ned Lipsitz of Lipsitz & Ponterio, a Buffalo law firm.