The ACLU’s latest lawsuit on warrantless cellphone tracking has hit a dead end

Earlier this month, the American Civil Liberties Union sued a local police department over the warrantless use of cellphone tracking devices, demanding that officials in Sarasota, Fla., hand over court documents concerning the practice.

The suit has now been thrown out. On Tuesday, State Circuit Court Judge Charles Williams found that he didn't have the jurisdiction to hear the case.

That's because even though the case concerns a local police department, it was working on behalf of the U.S. Marshals Service at the time that it deployed the stingray. Stingrays are used to collect information on nearby cellphones by setting up a fake cell tower; when wireless phones try to connect with the stingray, those contacts get logged by law enforcement.

The ACLU claims this is a violation of privacy. The group said it tried to get Sarasota police to produce the application it filed to a judge for permission to use the stingray, as well as the judge's order. But then, the ACLU said, the U.S. Marshals whisked the documents away to a federal facility, beyond the reach of Florida's public records law. Now the ACLU must either file a federal FOIA request to the U.S. Marshals or continue fighting the court case.

Michael Barfield, the vice president of the ACLU of Florida, said privacy advocates have a chance if they can prove to the court that the records in question were state public records, not federal records. A written agreement between the U.S. Marshals and another local police department on the use of stingrays seems to agree with that interpretation, he said.

The U.S. Marshals Service did not immediately respond to a request for comment.

"What we would like to do is have a hearing where all this evidence comes to a judge to show [that the Sarasota police department has] been holding these records for years," said Barfield. "If we ever got the evidentiary hearing we requested, we would demonstrate to the judge that even their own agreement [with the U.S. Marshals] characterizes the nature of the relationship — that [the records are] to be maintained by the local agency. By that standard, it would clearly meet the definition of a public record under state law."

Failing that, said Barfield, the ACLU would appeal the judge's decision.

 

 

Brian Fung covers technology for The Washington Post, focusing on telecom, broadband and digital politics. Before joining the Post, he was the technology correspondent for National Journal and an associate editor at the Atlantic.
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