Last Updated on January 10, 2022 by BVN

Jacob Smith, 2021 Fellow; Jungmin Park, Executive Director; and Nicholas Shook, Volunteer Attorney | Neon Law Foundation

The Neon Law Foundation recently worked with Black News Voice executive editor Stephanie Williams and local San Bernardino journalist Gail Fry to write an amicus brief spotlighting abusive digital search practices. This amicus brief was one of two briefs written in support of the Electronic Frontier Foundation’s (EFF) challenge to a San Bernardino County Superior Court’s decision to seal 8 search warrant affidavits relating to the use of cell-site simulators indefinitely and in their entirety.

Cell-site simulators trick cell phones in a region into connecting to a cell-site simulator which pretends to be a cell tower. Once the cell phones in a region connect to the cell-site simulator, the simulator can copy information sent from or received by the cell phones. The extent of this technology’s ability to track and monitor individuals has led to some concern and limitations on its use. You can learn more about cell-site simulators here.

The San Bernardino County Sheriff’s Department (SBCSD) uses cell-site simulators and is reported to be the California agency “granted the most electronic warrants to search digital property per resident in the state.” Likely in an attempt to illuminate to the public why SBCSD performed so many digital searches, EFF petitioned the San Bernardino Superior Court to unseal 22 search warrants and their supporting affidavits for cases involving cell-site simulators in 2019. Following this petition, SBCSD and San Bernardino County District Attorney (collectively “the County”) released portions of some of the warrants and affidavits but released only one of the search warrants and affidavits in its entirety. Notably, the County refused to release any portion of 8 of the warrant affidavits arguing that these 8 should remain entirely and indefinitely sealed in order to protect law enforcement investigations and the identities of witnesses. EFF challenged the complete and limitless sealing of these 8 warrant affidavits, but the Superior Court agreed with the County and ruled “that the entirety of each of the affidavits must remain sealed because there is no alternative means to release any of the information without compromising the identity of the parties, and that the affidavits are to remain sealed indefinitely.” You can read the court’s opinion here.

EFF has appealed this decision to California’s Fourth District Court of Appeal. The Appellate Court will hear the case early next year. You can read EFF’s final reply brief here.

Two organizations have filed amici briefs in support of unsealing the records and overturning the lower court’s ruling. The First Amendment Coalition argued “The Superior Court, and now Real Parties in Interest the San Bernardino County District Attorney and the San Bernardino County Sheriff, have taken a radical position: the orders sealing court records are sacrosanct and beyond the public’s ability to challenge,” First Amendment Coalition’s brief says. “Fortunately for those concerned about government transparency and accountability, that radical position is contrary to the law regarding public access to judicial records.” You can read the First Amendment Coalitions amicus brief here.

4th District Court of Appeals (image source: wikiwand.org).

Neon Law Foundation filed an amicus brief as well. In our brief, the Neon Law Foundation argues that when a cell-site simulator is used the search warrant affidavit provided to justify its use will always contain at least some disclosable information which would not compromise an ongoing investigation.

To support this assertion, the Neon Law Foundation first shows that the CalECPA clearly establishes that California citizens have a right to a minimum disclosure if they are a target of a search warrant. Since a cell-site simulator cannot track a single phone and instead tracks a region, the public has a right to know at least some minimum disclosure.

Neon Law Foundation then provided to the court an interoffice memo sent at the San Bernardino Sheriff’s Office outlining a requirement to log various data regarding cell-site simulators. Neon Law argues that this interoffice memo demonstrates that the County knows both the value of the data they are logging and that they can sort the data in a way that does not compromise the privacy and safety of the investigation. A copy of the interoffice memo can be found in this Freedom of Information Act (FOIA) response the County gave to MuckRock journalists.

Neon Law Foundation then briefly points out that in the cases the County used to support the notion that they had a right to seal the search warrant affidavits in their entirety, the judges of those cases ruled that only a portion of the affidavits should remain sealed, not the entire affidavit. Therefore, pointing out that is an exceptionally high standard and almost unheard of for a court to allow an affidavit to be sealed in its entirety.

After this, Neon Law Foundation points out that the County already aggregates and anonymizes the data from search warrant affidavits before supplying that information to Open Justice. Open Justice is an organization under the California Attorney General’s office that releases information like when cell-site simulators are used to the public online. This shows that the County has the ability and understanding of how to release data to the public in a way that supports transparency and does not compromise investigations.

The San Bernardino County Sheriff’s Department (SBCSD) uses cell-site simulators and is reported to be the California agency “granted the most electronic warrants to search digital property per resident in the state” (Image source: national police.org).

Lastly, an example was provided for both the court and County for how the County could redact a warrant affidavit in a way that would both satisfy EFF’s inquiry into the legitimacy of the County’s use of cell-site simulators and protect information crucial to an investigation. Hopefully, by walking the County through the process they could better understand what can be released at a minimum.

You can read Neon Law Foundations full amicus brief here. Read the Amicus Brief

After the Neon Law Foundation filed its amicus brief, the County filed a response. Their response begins by attempting to state that the public has no right to petition to contest the indefinite sealing of search warrant affidavits. The First Amendment Coalition’s amicus brief contains why this assertion would be a gross overreach of power and is simply untrue. The County ends their reply by stating that if EFF and the amici get their way, “The media and other activists will cause a flood of judicial, in camera review work statewide of warrants remaining sealed under Hobbs and such. And police techniques and the safety of confidential informants will be at risk of perpetual, ad hoc scrutiny by whomever is curious.” The County is somewhat correct here. If we at Neon Law Foundation had our way, each use of the highly invasive cell-site simulators would be heavily scrutinized. It is a dangerous technology that invades the public’s privacy and should be regarded as such.

The more powerful the government’s capacity is to invade individual privacy, the more it should be held accountable in its practices. It is common for government powers to justify sacrificing the privacy of the public for an increase in security, as SBCSD does. When individuals protest, a standard response is “if you have nothing to hide, you should have nothing to be afraid of.” We have seen the end results of that slippery slope throughout history across societies, where governments chipped away or violently overtook their citizens’ liberties under the same justification of safety until the primary danger to the public became the state itself.

While the right balance of privacy and safety will always be a matter of debate, one could always argue that the idea of “if you have nothing to hide, you should have nothing to be afraid of” should just as well apply to our government. In fact, ensuring government accountability and transparency was the original intent of the California Legislature in passing the CalECPA to hold law enforcement agencies accountable to the public with regard to searches they carry out with cell-site simulators. Additionally, the United States Congress signaled the same respect for government accountability to the public when it created the Freedom of Information Act (FOIA) for citizens to make public inquiries upon the government to ensure the functioning of our democratic society. What the EFF and Neon Law Foundation asks for merely echoes the directives of our most authoritative democratic institutions.

Unfortunately, SBCSD argues in its reply to the Neon Law Foundation amicus brief that the decision to keep search warrant records wholly and indefinitely sealed was the county judge’s. However, we crucially highlight that the SBCSD is complicit in the county judge’s mistake of law for repeatedly requesting the court to seal these records more extensively than the California Legislature allows in the CalECPA. As long as SBCSD continues to submit these unfair requests for sealing documentation of their actions, the SBCSD shows its disregard and disrespect for the state and federal law it is beholden to, and the public.

Neon Law Foundation is committed to the idea of protecting one’s right to their personal digital information and privacy. Although releasing search warrant information does not initially seem to align with this belief, it does when taken into account that San Bernardino County is attempting here to hide the aggregate and anonymized data that would hold the County accountable every time they use a technology that could deeply violate the personal privacy rights of everyone in San Bernardino County. Neon Law Foundation recognizes that anonymized aggregate data that is available to the public provides a lever that can keep an organization accountable to those it may be tracking.Follow this link to the original blog post.

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