Group sues Tacoma police over Stingray agreement

It’s a six-page document that takes about two clicks to find online, a boilerplate agreement disclosed by 12 law enforcement agencies in eight states.

Nevertheless, the Tacoma Police Department insists the public can’t see the details of its agreement with the FBI regarding the controversial Stingray surveillance device.

For that stance, the department faces a public-records lawsuit that demands almost $40,000 in penalties.

The complaint, filed Sept. 17 in Pierce County Superior Court by a Seattle advocacy group, contends police and the city’s legal advisers wrongly cite an exemption in state public-records law that protects “specific investigative records.”

“The redacted information is not within this exemption, as it is not intelligence gathered, nor results of intelligence gathering, nor intelligence gathered in a specific case, and is not specific intelligence information,” the lawsuit states.

“The information in the agreement was created before there was any investigation at all conducted with the Stingray equipment, and before any specific intelligence information was gathered with it.”

Tacoma City Attorney Elizabeth Pauli declined comment on the lawsuit, saying her office hadn’t seen it yet, and hadn’t been formally served with a copy.

Elsewhere — in California, Missouri, Maryland and Minnesota, for example — versions of the nondisclosure agreement have been released with minimal redaction. In Tacoma, the record is covered with page-length black blocks.

That’s what Seattle activist Phil Mocek received when he asked for a copy of the agreement last year. The News Tribune, which also sought the record, received the same response.

Mocek is a board member of the Seattle-based Center for Open Policing, the lead plaintiff in the case. The suit states that any potential fines from the suit, if awarded, would go toward that organization and its mission.

“They’re a fledgling nonprofit advocacy group,” said attorney Cleveland Stockmeyer, the attorney representing the center and Mocek. “They plan to get police records and publish them on their website.”

Stockmeyer added that the plaintiffs are most concerned about Tacoma’s use of the so-called investigative records exemption to justify blacking out the details of an agreement — originally signed in 2008 and amended in 2013 — that isn’t linked to a specific investigation.

“It’s not going to have super secret technical stuff about how the Stingray works,” Stockmeyer said. “It’s going to have boilerplate.

“The way we prove it in court is we ask the judge to look at it. It’ll be very short and sweet. If we’re wrong, we’re wrong. We just want our day in court to have the judge see it.”

Known technically as a “cell site simulator,” the Stingray device is a portable digital parasite: a phony cellphone tower in a box.

The News Tribune first reported Tacoma’s use of the device in a series of stories published in 2014.

When activated, the Stingray forces nearby wireless devices — all of them within range — to disconnect from their local service providers and swarm to the new signal. The Stingray sifts the data. Police can use that information to pinpoint a particular phone and locate its user.

Privacy advocates don’t like the implications; they worry that innocent third parties can be swept into the surveillance. Police say they don’t retain that data.

This year, following an eruption of controversy over the device, state lawmakers passed a law requiring police agencies to obtain search warrants that disclose its use in investigations.

Locally and nationally, open government advocates concur with the argument in the lawsuit that Tacoma police are misusing the investigative records exemption, embodied in state law.

Typically, the exemption protects records linked to active criminal investigations of specific individuals, such as police reports and witness statements.

Toby Nixon, a Kirkland City Council member and president of the nonprofit Washington Coalition for Open Government, supports the contention that Tacoma’s use of the investigative records exemption is erroneous.

“They (the plaintiffs) are exactly right that the investigative records exemption applies to information about a specific investigation, not generic information regarding investigative equipment,” Nixon said after reviewing a copy of the complaint.

Tacoma’s nondisclosure agreement with the FBI isn’t linked to a current investigation. The latest version, signed in 2013, includes an unredacted opening statement that describes the requirement for police to complete the agreement before using the equipment.

The wording mirrors phrasing used in other agreements signed by law enforcement agencies across the country. Those agreements, disclosed over the past few years with minimal or no redaction, are readily available online. Apart from changes in names and addresses, they match almost word for word.

For example, a Stingray agreement signed by the Baltimore Police Department in 2011 includes the same opening statement as the Tacoma agreement, and runs the same number of pages. None of the text in the Baltimore agreement is redacted.

At the point where Tacoma’s agreement is blacked out, Baltimore’s unredacted agreement outlines general warnings about the need for confidentiality.

It contains no technical information about the Stingray’s technology.

It warns Baltimore police not to publicize the use of the device. It asks the department to notify the FBI about any requests for information regarding the device. It includes contact information for the FBI departments that must be notified in case of such inquiries.

Agreements with agencies around the country feature similar wording.

Use of the Stingray also concerns the Electronic Frontier Foundation, a digital rights group based in California. Hanni Fakhoury, an EFF attorney, is familiar with the issue.

While he has not studied Washington’s public disclosure law, Fakhoury noted that most states have public-records exemptions on the books for investigative records — and they don’t apply to the type of record Tacoma is withholding.

“Every state’s public records law is going to be a little bit different, but they’re not that different,” Fakhoury said. “This (the nondisclosure agreement) is a general purpose record. The idea that this would somehow apply to a specific investigation is just absolutely not correct.

“I would be hopeful that the department wouldn’t waste taxpayer money on a record that you can Google today and find in seven different places.”

The lawsuit filed against Tacoma police seeks cash penalties calculated by the number of days — 395 – that passed since Mocek, the Seattle activist, made his original request and later filed suit.

Under state law, courts can levy fines of up to $100 per day for wrongful withholding of records.

The court docket for the case sets the hearing in January of next year. As of Thursday, Tacoma legal advisers had not entered any responses to the suit.

This story was originally published October 2, 2015 at 10:04 AM with the headline "Group sues Tacoma police over Stingray agreement."