East Bay cellphone surveillance plan gets attorney general’s support

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The California Department of Justice supports a plan by Alameda County District Attorney Nancy O’Malley and the Oakland and Fremont police departments to obtain controversial cellphone surveillance tracking technology, according to documents obtained through the California Public Records Act.

The East Bay prosecutor and police departments have been awarded $180,000 by the Bay Area Urban Areas Security Initiative, a local entity that disburses homeland security grant money. The agencies will use the funds to purchase and install Harris Corp.’s Hailstorm cell-site simulator, which is capable of tracking cellphones using the state-of-the-art 4G LTE network on a modified Ford F-150 pickup truck, as well as a KEYW Corp. Thoracic device, a smaller handheld surveillance device that also locates cellphones but passively listens in on radio frequencies instead of intercepting them like a cell-site simulator.

The Department of Justice, led by Attorney General – and U.S. Senate candidate – Kamala Harris, supported the Hailstorm project last year in a letter written by Larry Wallace, director of the law enforcement division.

The grants, Wallace wrote, “would enable local law enforcement agencies in the area to perform vital functions such as the prevention of and in response to a terrorist attack, tracking and apprehending serious violent offenders, capturing fugitives from justice and locating or recovering at-risk persons or kidnapping victims.”

The surveillance equipment would be loaned to neighboring law enforcement agencies through the Northern California Regional Intelligence Center, one of 72 counterterrorism fusion centers set up around the country after the 9/11 attacks.

Procurement documents and emails obtained by Reveal indicate that a Riverside County auto body shop will mount the Hailstorm device in the bed of the Ford pickup, where the equipment and antennae will be concealed by a camper shell. Four surveillance cameras will monitor the exterior of the vehicle.

The use of cell-site simulators is under heightened scrutiny both in California and nationally. The U.S. Department of Justice recently issued nonbinding guidelines requiring its law enforcement agencies to obtain a warrant to use cellphone tracking technology and barring them from collecting call or data content without express written approval. But the rules do not cover local law enforcement, which is governed by a patchwork of state laws.

Both the purchase of the Thoracic equipment and the attorney general’s support for the surveillance project have alarmed local civil liberties activists. Brian Hofer, an Oakland attorney who is advocating reform of city surveillance policies, said Kamala Harris’ involvement is particularly disconcerting.

“This is a really big constitutional issue. If the leading law enforcement agency in California is endorsing this technology, in a state with an enshrined right to privacy, we have a huge problem,” Hofer said.

The state Department of Justice has used Harris Corp.’s StingRay cell-site simulator since 2007, according to documents obtained by Reveal. While department spokeswoman Kristin Ford maintained warrants were required for law enforcement to use such devices, she did not produce any written documentation in response to either Reveal’s Public Records Act request or emailed queries about formal policies or guidelines.

Currently, two bills approved by the state Legislature would regulate electronic surveillance. SB 178, or the California Electronic Communications Privacy Act, introduced by Sen. Mark Leno, D-San Francisco, would require authorities to obtain a warrant before using cell-site simulators. The other, SB 741, would require local governments to notify the public and allow comment before letting local law enforcement use cell-site simulators. Both bills are awaiting Gov. Jerry Brown’s signature.

State courts and the attorney general have been unclear on the use of surveillance technology, said Sen. Jerry Hill, D-San Mateo, who introduced SB 741.

“Right now, it’s the Wild West, and there’s nothing to prevent nor warrant necessary to listen, track, obtain information from a cellphone in California,” Hill said.

Assistant Alameda County District Attorney Teresa Drenick said her office is drafting a privacy policy for use of the device and will make it available for public review once it’s finalized. In response to a Public Records Act request submitted by Hofer, the Oakland Police Department revealed that it has no policies, current or past, for the use of cell-site simulators. The department has used StingRay technology since 2006.

Earlier this year, Reveal uncovered the use of a StingRay by Oakland police to locate four men accused of shooting a police officer in 2013. In response to filings by defense attorneys, federal prosecutors admitted a cell-site simulator had been used without a warrant.

Micheal O’Connor, an assistant Alameda County district attorney, declined to answer questions about whether his agency requires law enforcement to obtain warrants to gather cell-site simulator evidence. O’Connor did say the “full intercept” software package detailed in the grant applications did not include the ability to intercept phone calls or data transmissions, but declined to further discuss the technology.

“Details about the workings, capabilities, and deployment of Hailstorm technology, if made public, would compromise the effectiveness of the technology,” O’Connor wrote in an email.

Mike Katz-Lacabe, a San Leandro information security professional who has filed dozens of records requests about cell-site simulators nationwide, questioned the Alameda County district attorney’s involvement in procuring surveillance equipment for law enforcement. According to the grant documents, an inspector from the DA’s office will be responsible for operating the device and coordinating its use with Oakland and Fremont police.

“Why is the prosecuting arm of government obtaining this technology, not law enforcement? That’s what makes this project unique,” Katz-Lacabe said, adding that he had filed similar requests to those submitted by Reveal with every prosecutor’s office in California without finding a similar project.

“This is blurring the lines between law enforcement and the judiciary,” he said.

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