Best News: New York county sheriff must give up stingray records, judge orders

Pat Williams

According to a judicial ruling issued Tuesday, the Erie County Sheriff's Office (ECSO) in Northwestern New York state must turn over a number of documents concerning its purchase and use of stingrays. The 24-page order comes as the result of a lawsuit brought by the New York Civil Liberties Union (NYCLU) and marks a rare victory in favor of transparency of "cell-site simulators," which are often shrouded in secrecy.

The devices can not only be used to determine a phone's location, but they can also intercept calls and text messages. During the act of locating a phone, stingrays also sweep up information about nearby phones—not just the target phone. Earlier this year, Ars reported on how the FBI is actively trying to "prevent disclosure" of how these devices are used in local jurisdictions across America.

"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," Mariko Hirose, a NYCLU Staff Attorney, said in a statement. "The public has a right to know how, when and why this technology is being deployed, and they deserve to know what safeguards and privacy protections, if any, are in place to govern its use."

Liar, liar, pants on fire

Relatively little is known about how, exactly, the stingrays are used by law enforcement agencies nationwide, although documents have surfaced showing how they have been purchased and used in some limited instances. In 2013, Ars reported on leaked documents showing the existence of a body-worn stingray. Five years ago, Kristin Paget famously demonstrated a homemade device built for just $1,500.

Worse still, cops have lied to courts about the use of such technology. The largest manufacturer of the devices, the Harris Corporation, has been tight-lipped about its hardware capabilities.

"We do not comment on solutions we may or may not provide to classified [Department of Defense] or law enforcement agencies," Jim Burke, a spokesman for the Harris Corporation, previously told Ars.

In February 2015, the American Civil Liberties Union published documents showing that local law enforcement in Florida has used stingrays thousands of times since 2007 for things as minor as a 911 hangup call.

"Of undeniable impact upon the taxpaying public"

The New York lawsuit has its origins in a June 2014 public records request. The NYCLU asked the Erie County Sheriff's Office for a number of stingray-related documents, including purchase orders, invoices, policies, and "records reflecting the number of investigations in which cell site simulators were used by the Sheriff's Office or in which cell site simulators owned by the Sheriff's Office were used, and the number of those investigations that have resulted in prosecutions."

The next month, that request was met with a blanket denial. Once the NYCLU sued in November 2014 for not fully complying with the request, the ECSO sent over some documents in an olive branch—asking the NYCLU to drop the suit, which it declined to do.

In the Tuesday ruling, Judge Patrick NeMoyer had some harsh language for the ECSO:

The purchase orders should have been disclosed in their entirety, without redaction of the various words, phrases, and figures thus far withheld.

The purchase orders (and more particularly the redacted words, phrases, and prices), were not "compiled for law enforcement purposes" in the sense meant by the statute but, even if they were, their disclosure would not: "interfere with law enforcement investigations or judicial proceedings"; "identify a confidential source or disclose confidential information relating to a criminal investigation," meaning a particular ongoing one; or "reveal [non-'routine'] criminal investigative techniques or procedures, meaning techniques a knowledge of which would permit a miscreant to evade detection, frustrate a pending or threatened investigation, or construct a defense to impede a prosecution (see Public Officers Law ~ 87 [2] tel til, [iii], [iv]; see also Matter of Fink v Lefkowitz, 47 NY2d 567,572 [1979]; Matter of Moore v Santucci, 151 AD2d 677, 679 [2d Dept 1989]) .. Further, the purchase orders (or, more precisely, the information redacted therefrom), although clearly constituting inter-agency materials" (the other agency involved was Erie County and its Office of the Comptroller), amount entirely to "instructions to staff that affect the public" (Public Officers Law ~ 87 [g] [ii]). Indeed, the instructions set forth in the purchase orders—'in essence, "Pay this bill of this vendor for this item purchased by the Sheriff's Office at this price"—was and is of quintessentially compelling interest to and of undeniable impact upon the taxpaying public.

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