An Arizona court has ruled in favor of a local police department that sought to keep records related to the use of a clandestine cellphone surveillance device a secret.
Freelance reporter Beau Hodai sued the Tucson Police Department after the agency failed to produce all documents related to its use of an electronic spy device called a StingRay, which acts as a fake cellphone tower in order to track phones of targeted individuals.
Hodai requested all documents in connection with the agency’s purchase and deployment of the StingRay device. The agency responded to Hodai’s request by producing a handful of redacted records while claiming other records were protected from Arizona’s open records law.
Hodai sued the police department in March hoping a judge would force the department to release the remainder of the records. But earlier this month, a judge ruled against Hodai, declaring the police department was within its right to withhold certain documents because releasing them could help criminals avoid detection.
“Not all records maintained by public officers are subject to public inspection,” judge Douglas Metcalf wrote in his ruling.
Hodai did not return a request from TheBlot Magazine for comment.
For several years, journalists and civil libertarians have been trying to gather information on how StingRays are used. Some courts have found in favor of civil liberties groups like the ACLU, requiring courts to release documents related to local law enforcement’s acquisition and use of the devices.
Documents that have been released reveal that the devices could be problematic from a privacy standpoint because StingRays force all cellphones within a given radius to connect to it instead of a legitimate network tower. In doing so, law enforcement is able to gather certain metadata from targeted and non-targeted phones alike; some police departments have asserted its data retention policies protect the privacy of non-targeted individuals, though specifics on those policies are often not disclosed.
Privacy groups have also raised issues with law enforcement’s warrantless use of StingRays and similar surveillance devices. When a police department taps a phone line of an individual, it is required by law to obtain a court order; however, law enforcement officials have acknowledged that they don’t always seek out authorization from a judge before they deploy a StingRay, which some have called a potential Fourth Amendment violation.
Worse, in some areas, police and prosecutors have covered up their StingRay use from defense attorneys, leaving open the real possibility that criminals could have their convictions overturned by arguing that prosecutors failed to disclose all evidence against them at trial. In at least one Florida court case, an appellate court set aside a guilty verdict against a man who was convicted of sexual battery and petty theft after police covered up their use of a StingRay device.
The Arizona decision could prove a setback for privacy advocates seeking greater transparency on the devices. Daniel Pochoda, an attorney for the Arizona chapter of the ACLU, told The Washington Post by phone that the group disagrees with the ruling.
“It was just a very badly reasoned decision,” Pochoda said.
The decision is already having consequences in other open records cases. Last week, the San Diego city attorney’s office released, among other things, a copy of the Tucson court order to a news organization that requested information on its police department’s use of a StingRay.