Judge Upends Vallejo’s Use of a Stingray

Cops in Vallejo have put their controversial cell-phone surveillance tool back in the box, after a judge released a tentative ruling (which the judge might or might not later finalize or amend) that they’d acquired it in violation of state law. The case was brought by Oakland Privacy,  the EFF Pioneer Award Winning organization and Electronic Frontiers Alliance member. They allege  that the city of Vallejo, California, may not use its cellular surveillance tool (often called a cell site simulator or stingray) because the police failed to get explicit approval from the city council, following input from residents, of an adequate privacy policy governing its use. According to the tentative ruling (again, it is not final), police must acquire from Vallejo City council a “resolution or ordinance authorizing a specific usage and privacy policy regarding that technology and meeting the requirements” of the state statute. 

The City Council assembled via teleconference in spring 2020, amidst a state-wide pandemic related shelter-in-place order, to vote for the purchase of this controversial piece of surveillance equipment. It did so without adequately obtaining input from the public. 

What’s worse, the city council approved the purchase in violation of state law (S.B. 741) regulating the acquisition of such technology. To ensure democratic control over whether police may obtain cell-site simulators, the California legislature passed it in 2015. EFF advocated to enact it. The law prohibits local government agencies from acquiring cell-site simulators without the local governing body approving a specific privacy and usage policy that “is consistent with respect for an individual’s privacy and civil liberties.” This policy needs to be available to the public, published online, and voted on during an open hearing. But the Vallejo city council did not consider and approve such a policy when it purported to approve purchase of the technology. 

After the judge’s tentative ruling, the Vallejo City Council announced it would be putting a privacy and use policy for this already-purchased machine on the docket for public discussion on October 27. As Oakland Privacy writes on their blog, “This meeting will provide an opportunity for Vallejo residents to read, review and comment upon the policy prior to adoption by the City.” We urge members of the public to turn out and voice their concerns about Vallejo police obtaining expensive new surveillance technology that can intrude on privacy, chill free speech, and disparately burden people of color.

A cell-site simulator pretends to act as a cell tower in order to locate cellular devices that connect to it. Cell phones in an area connect to the device rather than the actual tower, allowing police to see unique identifiers that could be used to identify or track people. Police most commonly use cell site simulators to locate a known phone in an unknown location (for example, to find a person wanted on a warrant), or to identify the unknown phones in a known location (for example, to learn the identity of protesters at a rally). After borrowing such a device from another agency, the Vallejo Police Department argued it needed its own, and proposed spending $766,000 on cell-site simulator devices from KeyW Corporation, along with a vehicle in which police would install it.

Police claim that cell-site simulators are a valuable tool in fighting terrorism and crime–but the truth is police often use them to target low-level infractions. For example, Maryland police deployed a stingray to collect information on the customers of a pizza shop in an attempt to find the thief that absconded with around $50 worth of chicken wings and subs. Worse, there are serious concerns that police use stingrays to identify people who exercise their First Amendment right to attend political demonstrations and protests.

Oakland Privacy’s lawsuit is an important test of CCOPS (Community Control Over Police Surveillance) ordinances, which cities around the country are adopting in order to ensure democratic control over what technology their police departments are able to acquire and use. 

We applaud this tentative ruling as a sign that protective CCOPS ordinances can prevent police from acquiring and using invasive technology without any oversight or accountability. And we applaud Oakland Privacy for bringing this case.