After about one week of public notice, the Santa Clara County Board of Supervisors approved the purchase of controversial Stingray phone surveillance equipment for its sheriff’s department.

Time was of the essence, Sheriff Laurie Smith told the board, because the $500,000 federal grant from the Department of Homeland Security that would pay for the hardware was days, no, hours away from expiring.

At least 10 other California communities have the portable devices, which mimic cellphone towers and allow the authorities to track targets while their devices are on, according to the American Civil Liberties Union (ACLU). The phones don’t have to be in use.

Stingrays, more formally known as International Mobile Subscriber Identity Catchers (IMSI), can be used to effectively track the whereabouts of a person without planting a bug on them. The beauty of it is, the cops don’t necessarily use a warrant. The ACLU found a Florida police detective who landed permission to use a Stingray by filling out a routine “track and trace” application rather than seeking a more-difficult-to-obtain probable-cause warrant.

Unfortunately, most of the information on Stingray use is anecdotal because the manufacturer, Harris Corporation, requires purchasers to sign nondisclosure agreements concerning the technology. The First Amendment Coalition filed a lawsuit (pdf) against the San Diego Police Department in December to find out what it was doing with its Stingray.

The lawsuit does not confront the government argument made over the years that warrants aren’t needed since the device does not reveal the content of messages, and cellphone users have no expectation of privacy. The attorneys just want to look at public records that show what the department owns, what training manuals are used, and what guideline and restrictions exist for Stingrays. They would also like six months worth of any legal motions or documents submitted to a judge for use of the devices.

Essentially, the lawsuit seeks to find out who is being surveilled and if warrants are being used.

The lone dissenter among the Santa Clara supervisors, Joe Simitian, raised similar concerns in addressing remarks to Sheriff Smith at Tuesday’s meeting, according to the San Jose Mercury News:

“Just to be clear, we're being asked to spend $500,000 of taxpayers’ money, plus $40,000 a year for a product the brand name of which you are not sure, the specs you don't know, a demonstration you haven't seen for which there is no policy in place, for which you have a nondisclosure agreement.”

Although most of the public, including San Jose's independent police auditor and the rest of Silicon Valley, were unaware the purchase was being considered until last week, funding was first allocated by the feds in July 2013, according to a memo (page 334) the sheriff sent the board on the day of the vote.

The state gave the sheriff’s department its approval last November. And “since that time, the Department has been working with County Procurement on the purchase and with County Counsel on the review and approval of a performance bond.”

Supervisor Simitian described the board’s public discussion of the issue as “15 minutes worth of conversation.”

The supes attached a condition to their approval that they be included in drawing up a policy for using the technology.

–Ken Broder

To Learn More:

Santa Clara County to Get Controversial Cellphone Tracker, with Stipulation (by Eric Kurhi, San Jose Mercury News)

Stingray Phone Trackers Coming to Santa Clara After “15 Minutes” of Review (by Jon Brodkin, Ars Technica)

Lawsuit Wants San Diego Police to Go Public About Stingray Surveillance (by Ken Broder, AllGov California)

ACLU to Santa Clara Sheriff: Don’t Sneak This Stingray by the Public (American Civil Liberties Union)