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ACLU continues effort to force police to reveal info on cell phone tracking devices

The city of Tucson is trying to prevent releasing documents on a device is uses similar to the one pictured, which mimics a wireless carrier cell tower to force nearby cell phones and other cellular data devices to connect to it, revealing their locations.

The city of Tucson is trying to prevent releasing documents on a device is uses similar to the one pictured, which mimics a wireless carrier cell tower to force nearby cell phones and other cellular data devices to connect to it, revealing their locations.

Rebuffed by a trial judge, the American Civil Liberties Union is asking appellate judges to force the Tucson Police Department to cough up information about devices it owns that allows it to track cell phones – and, by extension, their users.

Attorney Daniel Pochoda said Pima County Superior Court Judge Douglas Metcalf acted illegally when he accepted at face value the arguments by attorneys for the city that providing the documents would disclose “sensitive investigative techniques.”

“Arizona’s Public Records Law does not recognize a blanket privilege to not disclose law enforcement investigative techniques,” Pochoda said in his filing with the state Court of Appeals. At the same time, he said, the law favors disclosure and presumes, absent evidence to the contrary, that documents are public.

What that means, Pochoda said Tuesday, is if Tucson wants to keep the materials out of public view its lawyers must show a specific harm that would occur if that happened.

“You can’t just invoke the terms ‘sensitive information’ or ‘investigative techniques’ and therefore that trumps any rights you have under the Arizona Public Records Law,” he said. “And that’s what happened here.”

Metcalf, in his ruling, said there is legal precedent to withhold from the public “sensitive law enforcement investigative techniques.”

But Pochoda said the judge cited no precedents from Arizona.

He said that is a fatal flaw in the ruling given how much stronger the Arizona Public Records Law is than most other states. Pochoda said Arizona law puts the burden on the government agency denying access to prove why the information should be shielded, not on the person who wants it.

“There has to be a specific showing related to that specific request as to why there would be harm to the public interest if it was disclosed,” Pochoda said.

What the appellate court rules is likely to have implications beyond the specific request by freelance reporter Beau Hodai to see training manuals and other materials from the Tucson Police Department on how the agency uses its StingRay and StingRay II devices. It could set precedent for how much leeway courts will give all Arizona governments to keep documents secret.

The device itself, and its basic operation, is not entirely a secret.

It relies on the fact that cellphones essentially log in with each tower they are near. That is necessary so that incoming calls are routed to the correct tower and that ongoing calls are handed off from tower to tower as someone travels through an area.

The device, made by Harris Corp., mimics a cell tower. So every phone within range logs in.

Police then can comb through that data in the device they have to find the cellphone they are seeking. And the device is portable, meaning officers can actually take it door to door to pinpoint the phone for which they are searching.

Pochoda said there also are variants which actually can intercept calls, text messages and emails.

Hodai asked for more details of how Tucson uses the device, like “quick reference sheets,” which are instructions on how to use the equipment. And he wanted the department’s training materials, including an equipment worksheet and a computer presentation that explains how the equipment works.
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In his ruling last year, Metcalf said Arizona law presumes documents are public.

But he said that presumption is overcome if an agency provides a legitimate reason to keep the documents secret. And in this case he accepted the city’s arguments, including national security interests.

The judge specifically noted sworn statement from Bradley Morrison, chief of the FBI’s Tracking Technology Unit, who argued Morrison that disclosure of even minor details of the device would be harmful.

That reliance, Pochoda told the appellate court, was misplaced, pointing out that Morrison never actually reviewed the records at issue to spell out how disclosure of each and every one would be harmful. And Pochoda said that “national security” claims were overblown, noting that many of the requested documents, like the operations manual, the purchase order and the contract between Tucson and Harris Corp. were provided by the company to the city “without FBI involvement.”

Pochoda also said some of the information the city withheld was specifically at the request of the manufacturer, including serial numbers and purchase prices.

“None of the redactions were made pursuant to the language or cases interpreting the Arizona Public Records Law,” he argued. And Pochoda said even if there were some exception for investigative techniques, none of these documents fall within what that would cover.

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