PHOENIX — Tucson police purposely hides its use of technology that allows it to track the cellphones of people — innocent or otherwise — the American Civil Liberties Union is claiming.
In new legal filings, Attorney Darrell Hill told the state Court of Appeals the city has admitted the equipment it has purchased allows it to collect personal data of people who are not subject to criminal investigations. Hill said that includes text messages, call history, location data and emails.
Hill said attorneys for the city admit to using that equipment without first getting a warrant “or any other form of judicial review.”
“In addition, as a matter of Tucson Police Department practice, any written reference to the use of the technology in TPD reports is purposely hidden,” the ACLU attorney said.
All that, he argued, makes it critical that the Court of Appeals rule that the city surrender documents it has about how it has used the tracking equipment in the past and continues to use it.
“Defendants hide the use of surveillance equipment from the public, the media, and the courts by making records about surveillance equipment indistinguishable from other search methods,” Hill argued.
“Without enforcement of the Arizona Public Records Law, no party, person, or institution will be allowed to provide oversight of defendant’s use of surveillance equipment.”
City Attorney Mike Rankin dismissed the claims, saying these are “allegations without any factual support whatsoever.’’
What the court rules could have implications beyond Tucson.
It is not known how many other police departments in Arizona have purchased similar technology. A ruling requiring disclosure could force those agencies to surrender their reports.
There is no dispute that at least Tucson has a device that electronically mimics a cellphone tower.
The only way for people to make and receive calls is if their phones “log in” with nearby towers. With each phone having both a unique number and electronic serial number, the tower — or the police equipment — can see everyone who is nearby.
Tucson police have said they use it to track specific suspects by their phones, ignoring other numbers, and taking the device, which is portable, from door to door if necessary.
In a ruling last year, Pima County Superior Court Judge Douglas Metcalf rebuffed a request by the ACLU on behalf of a freelance journalist for various documents, including training manuals and other TPD documents on how the agency uses the device.
Metcalf said it would not be in the “best interests of the state” to release the materials, saying that would practically give criminals a road map of how to defeat the device, which is used by Tucson and other local and national police agencies.
The lawsuit forced the city to admit it has used the device at least five times. Police Lt. Kevin Hall acknowledged the agency has not sought or obtained a warrant in any of those cases.
In his latest filings at the Court of Appeals, Hill said Metcalf’s ruling was legally flawed.
Hill said the Arizona Public Records Law requires the city to demonstrate there would be a “specific material harm that would result from the release of the requested records.” Hill said that did not occur.
And Hill said Metcalf should not have relied on a written statement from an FBI agent that said making the Tucson documents public would undermine his agency’s use of the device. Hill said the federal government had the opportunity to intervene in this case but has chosen not to do so.
Much of the ACLU argument turned on the question of Tucson claiming it would be a “burden” to release the records.
Hill said there is no such exception from the Arizona Public Records Law, which in general requires disclosure.
He said even assuming the city can assert such a claim, it must be balanced against the public interest in the records sought. Hill argued that telling people how the police can — and have — tracked them outweighs any burden.
“It is hard to imagine a case where the public interest that the plaintiff seeks to vindicate in requesting these documents could be stronger,” he wrote.
“Defendants do not dispute that cell site simulator equipment, including equipment the city has used, collects the personal data of third parties who are not subject to criminal investigations,” Hill told the appellate judges. And he pointed out the admitted lack of first seeking a search warrant.
“These troubling admissions call for heightened public scrutiny and strengthen arguments that defendants cannot use ‘burden’ as an excuse to refuse to provide public records,” Hill wrote. He said the Fourth Amendment rights of “innocent bystanders” against warrantless search are affected by the surveillance.
In court filings last month, Assistant City Attorney Dennis McLaughlin said releasing the records would harm not only investigative techniques of the police department “but also harm the interests of the FBI, the Department of Homeland Security, and other law enforcement agencies throughout the country that use the same technology to fight crime and terrorism.”
The appellate judges have not yet set a date to hear the arguments.
