Four years ago, EFF set out on a mission to chase down the paper trail left behind when cops in California use cell-site simulators. This trail has led us to a California appellate court, where next spring we will face-off with San Bernardino County law enforcement over whether they can keep search warrants authorizing electronic surveillance secret from the public indefinitely.
Cell-site simulators (CSSs) mimic cell-phone towers to trick any nearby phones into connecting with them. Police use this technology to gather information on people’s phones or to track people in real time.
Whenever police use surveillance tools like CSSs, they inevitably sweep up innocent people’s private data. Because these tools are so invasive, there are legitimate questions about whether law enforcement should have deployed them in that particular investigation.
The public should be able to answer those questions by reviewing the public records that reflect how law enforcement justified using CSSs, what types of crimes merited their use, and what training and expertise officers had when deploying them. But in San Bernardino County, Calif., the public has been shut out of accessing these details despite EFF’s effort to make court records public.
The long fight to make search warrant records public
Since 2018, EFF has been trying to pry loose search warrant filings, including affidavits filed by law enforcement officers seeking court approval to use cell-site simulators, after we suspected officials were improperly sealing these records at local courthouses. Our concerns turned out to be correct.
Law enforcement agencies nationwide have a history of shielding the use of this technology from public scrutiny, with prosecutors going so far as to even dismiss cases rather than reveal information about how the technology works.
However, in 2015, two new California laws changed the game in the Golden State. First, SB 741 required California law enforcement agencies to post their cell-site simulator usage policies online. Second, and more importantly, the California Electronic Communications Privacy Act (CalECPA), ensured that the existence of search warrants involving cell-site simulators would be disclosed via the California Attorney General’s OpenJustice website and that the warrants would be available to the public via the courts.
From the San Bernardino County Sheriff’s SB 741 policy, we learned that the agency keeps an annual tally of CSS use: in 2017, deputies deployed the technology 231 times, including 20 times in “emergency circumstances.” Via the Attorney General’s CalECPA dataset, we were able to identify the existence of several search warrants we believed were related to CSSs, because they mentioned the term “cell-site stimulators,” an unintentional misspelling.
However, when we tried to obtain six actual search warrants themselves, we hit a wall: San Bernardino County law enforcement refused to turn over the records. The agency claimed that our request was “vague, overly broad,” didn’t describe an identifiable record, and would be exempt from disclosure as investigative records.
And so we sued in October 2018. San Bernardino continued to refuse to provide the records, and claimed they could not make them public because the files remained indefinitely under seal.
Rather than give up, we expanded our request to cover 22 search warrants that we believe could shine light on the use of cell-site simulators or other forms of electronic surveillance used by the San Bernardino Sheriff’s Office.
After asking the court to unseal those records, we filed another lawsuit demanding that they be made public by arguing that the indefinite sealing violated the public’s right to access judicial records under the First Amendment.
An incremental victory for public access, then a new roadblock
The second lawsuit demonstrated that law enforcement had been oversealing these records in ways that were not warranted under the law. Authorities subsequently made public large portions of the search warrants applications and related documents. And in one case, law enforcement released one search warrant in its entirety after learning that a judge had rejected its sealing request and never made the documents secret.
But authorities claimed that eight law enforcement affidavits filed with search warrants must remain entirely under seal indefinitely and moved to dismiss EFF’s lawsuit. These records are important and should be public because they likely contain the justification officials provided for using an invasive tool like a cell-site simulator, as well as the type of crime being investigated. Disclosure of that information will enable the public to see whether police are reserving use of cell-site simulators for when they are truly needed or if they are routinely deploying them in non-violent or other low-level investigations.
Despite the high public interest in the affidavits, the trial court hearing the case agreed with law enforcement and ruled in January 2021 that the affidavits must be kept secret for the foreseeable future.
EFF appeals to defend the public’s right to court records
With the trial court’s ruling in favor of secrecy, the stakes were raised. Now, it is no longer just about cell-site simulators, but the question of whether the government has the power to keep search warrant records secret indefinitely.
Our appeal argues that the trial court’s ruling makes it very difficult for the public to understand basic facts about how police are using cell-site simulators and other invasive technologies that sweep up innocent people’s personal data. Moreover, EFF argued that the First Amendment and California laws and rules do not allow authorities to keep every word in the affidavits under seal, in their entirety, forever.
Instead, the trial court should have made the documents public and redacted any specific information that could justifiably remain secret.
We completed briefing in the case earlier this fall and were happy to receive support, via friend-of-the-court briefs, from the First Amendment Coalition and two local journalists who report on law enforcement’s impact on the local community. We anticipate the appeals court will hear arguments in the case in spring 2022.
EFF’s case shows police fail to follow CalECPA
The biggest problem with EFF’s four-year battle to pry the search warrant affidavits loose is that they should never have been kept secret for so long in the first place. Under CalECPA, law enforcement is required to make public their surveillance orders as soon as the underlying surveillance period ended.
So if the cops sought a pen register and trap and trace order for two months, under CalECPA the records reflecting that surveillance generally must be made public after two months. And another California law has always required authorities to make public search warrant filings 10 days after they have been executed.
San Bernardino County authorities’ excessive secrecy violates CalECPA and is in clear conflict with governing law in the state. The fact that EFF continues to have to push in litigation for compliance with these laws highlights how far law enforcement will go to keep their surveillance activity secret. But EFF remains undeterred.
In the meantime, the case shows that CalECPA is only as effective as its enforcement. This is why we need the California Department of Justice to bring San Bernardino authorities and other agencies across the state into compliance with CalECPA’s transparency mandates.