Last Updated on December 6, 2022 by BVN

The Electronic Frontier Foundation, the leading nonprofit organization defending civil liberties in the digital world is taking its case to the California Supreme Court after an unfavorable decision by the 4th District Court of Appeal regarding its request to unseal eight search warrants authorizing covert surveillance using a cell-site simulator in San Bernardino County. 

Gail Fry | IE Voice News & Black Voice News Contributor

The quest for transparency and justice continues as the indefinite sealing of search warrants authorizing secret surveillance in the case of the Electronic Frontier Foundation (EFF) vs San Bernardino Superior Court heads to the California Supreme Court.

The surveillance in question is the warrant authorized use of cell site simulators. As the EFF explains, cell phones, when turned on, constantly seek out nearby cell towers even if the user is not making a call. 

When a search warrant is issued for a target cell phone, cell site simulators (also known as stingrays) furnished with identifying information, searches for the target phone. When the cell site simulator is close enough, the target phone, as well as all other cell phones in range, will connect to the cell-site simulator as though it were a cell tower. This leaves any cell phone user in the vicinity vulnerable to intercept. 

This is of particular concern in San Bernardino County. In 2016, for example, the San Bernardino County Sheriff’s Department used this technology more aggressively than other law enforcement agencies in the state.

Following the story

IE Voice and Black Voice News has covered this important topic in a number of articles. Editor S.E. Williams first alerted the community that they could have been secretly surveilled by law enforcement when she wrote the article, Watching the Watchers, published August 25, 2016.

(source: eff.org)

On February 1, 2021, when the article San Bernardino County Sued for Questionable Spying on Citizens  was published, contributor Gail Fry covered the final court hearing when San Bernardino Superior Court Judge Dwight Moore ruled in favor of the court and against EFF, deciding that eight search warrants authorizing the use of Stingray devices would remain indefinitely sealed.

On December 20, 2021, reporter Breanna Reeves revealed how IE Voice/Black Voice News Editor Williams and Contributor Fry participated in a “Friend of Court Brief” in support of EFF’s appeal of Judge Moore’s ruling when the article Black Voice News Joins ‘Friend of Court Brief Seeking Transparency in Sheriffs Use of Stingrays was published. 

On March 14, 2022, the article San Bernardino County Sheriff: Will Voters Make Their Own Choice in 2022? Part 1 was published where Fry informed the community that the San Bernardino County Sheriff’s Department, without a warrant, used the Stingray device over 300 times between January 2014 and May 2015, and was one of the three biggest organizations purchasing surveillance equipment in the State of California in 2014.   

A Brief History: EFF vs San Bernardino

On October 23, 2018, EFF filed a lawsuit against San Bernardino County, its sheriff, and its district attorney seeking to unseal search warrants involving the use of cell-site simulators. After unsealing some of the warrants, EFF finalized the case. 

On October 8, 2019, EFF sued the San Bernardino Superior Court, the County of San Bernardino, and its district attorney, continuing its quest to unseal eight remaining search warrants from the previous case.

On January 15, 2021, San Bernardino Superior Court Judge Dwight Moore denied EFF’s petition to unseal court records, explaining that unsealing these specific warrants would complicate state interests, sources and methods, and pose dangers to confidential informants. The court found no other remedy except to keep these warrants sealed.

On March 25, 2021, EFF filed an appeal of Judge Moore’s ruling to the 4th District Court of Appeal.  After hearing arguments between EFF and the San Bernardino Superior Court, the County of San Bernardino, and the district attorney, the 4th District Court of Appeals agreed with Judge Moore’s ruling. 

Mark Allen Vos, Office of The District Attorney Appellate Services Unit, represented the San Bernardino Superior Court at the Appellate hearing.

What will the California Supreme Court Decide?

After the unfavorable decision by the 4th District Court of Appeal, on October 25  EFF requested the California Supreme Court to resolve conflicts in the court’s decision and uphold the public’s right to access judicial records.

Electronic Frontier Foundation Attorney Aaron Mackey describes the arguments on both sides presented to the 4th District Court of Appeal as to the public’s right to access search warrants. (Source: Gail Fry, Black Voice News and IE Voice).

The 4th District Court of Appeal Opinion, issued September 15, 2022, described EFF’s argument as claiming the San Bernardino County Sheriffs have sought the highest number of search warrants in the state using cell-site simulators.

Electronic Frontier Foundation Attorney Aaron Mackey affirms that San Bernardino County Sheriff’s Department had the largest number of search warrants authorizing the use of cell-site simulators, per person, in the State of California.  (Source: Gail Fry, Black Voice News and IE Voice).

In doing so, EFF alleges the sheriff regularly asks the court to indefinitely seal the warrants using cell-site simulators, with the San Bernardino County Superior Court typically granting their requests.

Due to concerns about the sheriff‘s use of the cell-site simulators, EFF petitioned the San Bernardino Superior Court to unseal the eight search warrants authorizing the sheriff’s use of cell-site simulators that were issued between March 2017 and March 2018.

At the San Bernardino Superior Court, EFF revealed they were able to unseal a number of these search warrants, while eight remain under seal.

Electronic Frontier Foundation Attorney Aaron Mackey explains that they were able to unseal several search warrants during the lawsuit, describing what those search warrants revealed. (Source: Gail Fry, Black Voice News and IE Voice).

EFF argued that the trial court should have unsealed the search warrants under Penal Code Section 1534(a), Rules of Court, Rules 2.550 and 2.551, the First Amendment of the United States Constitution, the California Constitution, and common law. 

Penal Code Section 1534(a) says a search warrant is to be executed and returned within 10 days after its issuance date, thereafter, the records shall be open to the public. After 10 days, the warrant, unless executed, is void.

EFF argued that the eight search warrants had to be unsealed under section 1534(a) because the warrants were executed long before EFF asked to unseal them.   

But San Bernardino County argued the eight search warrants fall under “Hobbs affidavits” (an affidavit including details about a confidential informant) and should remain sealed indefinitely because they contain sensitive information about confidential informants and “official information.”

The 4th District Appellate Court agreed with the County, finding an exception to the public’s right to access court documents, and ruling that when a search warrant affidavit contains material about a confidential informant, the affidavit may be sealed to protect the informant’s identity. 

The Court explained that while granting EFF access to the Hobbs affidavits would have some public benefits, such as enabling greater public oversight of county law enforcement, these benefits are outweighed by the harm to the criminal investigatory process.

The court reasoned that the affidavits are full of information about confidential informants, facts learned from those informants, and information about the County’s investigations and investigatory techniques. Thus, a “line-by-line redaction” of the affidavits is “not practicable.”

California Rules of Court, Rules 2.550 and 2.551

These rules provide the court with a standard, procedures, and criteria to use when a request is made to seal or unseal a record, with exceptions for specific court records required to be kept confidential by law.

The appellate court held that these rules do not overcome the trial court’s proper finding that the official information in the Hobbs affidavits should remain sealed under Evidence Code section 1040.

As to EFF’s argument of the public’s right to access court records under the First Amendment, the appellate court explained that prior court rulings required the court to first determine if it (the court) had abused its discretion when it denied EFF’s request to unseal the search warrants under Evidence Code section 1041.

The Electronic Frontier Foundation has argued the public’s right to access court records under the First Amendment to the U.S. Constitution. (rcfp.org).

If the court had not abused its discretion in deciding to keep the search warrants sealed, then the First Amendment would not provide the public with the right to access the court record.   

The appellate court explained that the court must weigh the government’s interests in maintaining information confidential against the public’s general right to access court records or a criminal defendant’s right to challenge a warrant.

After reviewing the Hobbs affidavits, the appellate court found the San Bernardino Superior Court did not abuse its discretion and therefore, these materials were not available to the public under the First Amendment.   

California Constitution

EFF argued that it has a right to the Hobbs affidavits under the California Constitution’s provision (Article I, Sections 2(a) and 3(b)(1)) protecting the people’s and the media’s right to free speech, to write and to publish as well as their right to access information about the public’s business conducted by their government.   

The appellate court cited an exception in the law to protect the confidentiality of law enforcement and prosecution records.

The appellate court concluded that EFF had no right to access the Hobbs affidavits under the First Amendment or the California Constitution, or the California Rules of Court. 

Common Law

Common Law refers to laws that were established in England from judicial decisions based on the customs of everyday life, and decency, that may not be in writing, but are recognized as part of a moral code. Common law is the foundation for the legal system in all of the United States courts, except Louisiana.        

As to EFF’s argument that it has a right to the Hobbs affidavits under Common Law, the appellate court held the San Bernardino Superior Court properly denied EFF access to the Hobbs affidavits under the First Amendment, and did not abuse its discretion by denying EFF access under Common Law.

The appellate court explained the First Amendment is generally understood to provide a stronger right of access than the common law.

When a search warrant is issued for a target cell phone cell site simulators, furnished with identifying information, search for the target phone. When the cell site simulator is close enough, not only the target phone but also other cell phones in range, will connect to the cell site simulator as though it were a cell tower.(source: eff.org).

EFF goes to the California Supreme Court

In an interview with IE Voice/Black Voice News, EFF’s attorney Aaron Mackey affirmed, “We fight for individuals’ rights to privacy, free expression, and innovation online.” 

Mackey explained that EFF filed this case because it targets the heart of our privacy and the ability to know what our government is doing when it sets up and uses prying surveillance technology like a cell site simulator, which collects data from all cell phones within range. 

“A cell site simulator is a really good example of how broadly law enforcement can invade everyone’s privacy in a particular area,” Mackey warned. 

Then there are people’s constitutionally protected freedoms, Mackey declared, like the people’s right to be free of unreasonable search or seizure of their person or their private property.

“A cell site simulator is a really good example of how broadly law enforcement can invade everyone’s privacy in a particular area,”Electronic Frontier Foundation  Attorney Aaron Mackey warned. (source: eff.org).

Additionally, Mackey explained that these tools can harm our First Amendment right to organize, to engage in lawful protest, and ask the government to fix problems.

He said that EFF is really concerned about how law enforcement uses cell site simulators which can collect personal information about you, the cell phone itself, what it’s connecting to, the contents of phone calls, other messages, and communications.

“It’s important for the public to know when law enforcement is setting it up somewhere where there’s a lot of foot traffic,” Mackey explained, giving an example of places where it’s going to capture a lot more people than the target of their investigation.

Electronic Frontier Foundation Attorney Aaron Mackey speaks about how innocent people’s data can be collected by law enforcement using a cell-site simulator, and have no ability to find out if their privacy was violated.  (Source: Gail Fry, Black Voice News and IE Voice).

He explained that if we knew the date, time, and location of the cell site simulator, people may be able to realize their communications were likely swept up by law enforcement, a violation of their privacy.     

“What about when law enforcement secretly conducts a criminal investigation, uses a cell site simulator to surveil, and then no criminal charges are filed?” he posed.  

As the search warrant remains sealed after the investigation is closed, Mackey believes that the public has a right to understand what data was collected by the cell site simulator, and what happens to the data.  

“The fourth district court’s decision conflicts with other California appellate court cases involving search warrant affidavits,” Mackey objected, citing a famous 2005 decision involving Michael Jackson, where the court ruled that the public does have a presumptive right to search warrant affidavits.

Electronic Frontier Foundation Attorney Aaron Mackey discusses the conflict that the appellate court decision has left unresolved, the rights of the public to access search warrants. (Source: Gail Fry, Black Voice News and IE Voice).

“What we’re asking the California Supreme Court to do, is actually review the case and set the law that would govern those records,” Mackey continued.

Electronic Frontier Foundation Attorney Mackey explains they are asking the California Supreme Court to set the law, and confirm search warrants are public records. (Source: Gail Fry, Black Voice News and IE Voice).

EFF wants the California Supreme Court to confirm these search warrant affidavits are public records, Mackey advised, then the only question is whether there’s any factual reason why the record should remain sealed or whether it could be redacted to allow public access.