Tucson invokes ‘national security’ to avoid detailing cell-phone tracking program

The chief attorney for the city of Tucson is telling a judge that national security could be compromised if it is forced to disclose some documents about how it uses equipment it has purchased to track cell phone users.

In legal arguments in Pima County Superior Court, Michael Rankin said that the release of even what are called the “quick reference sheets” for the StingRay tracking device it purchased in 2011 and has used at least five times would not be in the public interest.

“These materials have been withheld based upon a concern that releasing this information would compromise sensitive law enforcement techniques and national security interests by making the technology available to criminals,” Rankin argued. And he said it’s not a simple question of withholding only key portions of those documents.

“Even small bits of information concerning the operation and specifications for this technology can be pieced together to create a body of information that allows technology to be defeated by criminals and others seeking to do harm,” Rankin wrote in pleadings to Judge Douglas Metcalf.

The fight stems from public records requests by Beau Hodai to learn how and where Tucson has used the device, manufactured by Harris Corp.

In essence, the StingRay takes advantage of the fact that cellular companies need to know which cell phones are active near which towers. The phone effectively logs in with its unique electronic serial number.

The StingRay and similar devices mimic an active cell phone tower, causing the phone sought – and other cell phones in the area – to register with the equipment. That allows police using mobile and hand-held equipment to track the phone and who has it.

Hodai also sought information on policies about when police can use the equipment.

The city acknowledged five specific uses, providing details on four. Metcalf already said the fifth case remains active, allowing the city to rebuff records requests for that instance.

But Tucson continues to fight release of some of the documentation on the operation of the equipment.

Rankin acknowledged that in Arizona there is a presumption that all documents in the hands of public officials and agencies are subject to disclosure.

But he said that courts have ruled this can be trumped by consideration of the “best interest of the state.” And Rankin said that clearly is the case here.

The city also is trying to block access to an “equipment worksheet” and PowerPoint presentation to familiarize those working with the equipment with how it operates.

Here, too, Rankin told Metcalf these should remain confidential because they would “compromise the effectiveness and use of this technology by both local and federal law enforcement agencies.” And he said the materials “will educate persons on how to employ such techniques themselves.”

And Rankin said a federal appeals court has said that electronic surveillance equipment occupies a special category of “qualified privilege of nondisclosure” because of its importance in law enforcement.

Attorney Dan Pochoda of the American Civil Liberties Union, which is seeking the documents for a freelance reporter, said he will provide a detailed response to the city’s arguments in court next month. But Pochoda said he’s not going to drop the request simply because the city is claiming national security interests.

“It’s been publicly documented that the government has often attempted to deny what should be publicly available information using this blanket term of security or interference with some operation,” he said. And Pochoda said many courts have dismissed such defenses and ordered documents disclosed.

But Pochoda acknowledged that some government agencies have been more successful playing the “national security” card.

“Unfortunately, a lot of courts are fearful,” he said. “Just the invocation of those words will put them on the defensive.”

Pochoda said that’s what’s led, on a national level, to secret courts which decide when and how federal agencies can conduct surveillance “with much too little a check and balance on the part of disclosure.”

One thing could work against Tucson’s argument about releasing too much information: Much of it may already be out there.

A Florida judge in June ordered the unsealing of a 2010 transcript in a criminal case there where the tracking technology was used to find a man accused of assaulting a woman and taking her cell phone. And that transcript, consisting of questions to a detective who used the equipment, provided a number of details.

The most obvious might be the fact that the equipment works whether the person is using the cell phone or not. But it does not work if the phone is turned off entirely.

Christopher Corbitt, an investigator with the Tallahassee Police Department, detailed how he first got the cell phone provider to tell him, based on its own cell phone tower reports, , the approximate location of the phone in question. Then the department put its equipment to work.

“So, just as the phone was registered with the real Verizon, tower, we emulate a tower, we force that handset to register with us,” the detective said. “Then we’re able to, by just merely direction finding on the signal emulating from that handset, we’re able to determine a location.”

At that point, he said, “it’s a matter of getting closer and closer.”

“Using portable equipment we were able to actually basically stand at every door and every window in that complex and determine, with relative certainly you know, the particular area of the apartment that that handset was emanating from,” Corbitt testified.

He also said that, to make the tracking easier, the equipment “forces the handset to transmit at full power.” But the flip side of that, he said, is if the police do not locate the phone in short order, “the battery dying would essentially end our ability to locate it.”

Separate from the specifics about Tucson’s tracking device, the city is objecting to what it calls “incredibly broad and unduly burdensome requests.”

For example, Rankin said Hodai wants any document that “pertains in any way to the Federal Bureau of Investigation.” He said that, with more than 1,200 employees and a corresponding number of email accounts to search, that could include potentially “tens of thousands of documents.”

He said, though, the city has turned over information from email accounts of anyone who has been involved with this specific technology.