City fined for Tacoma Police withholding public records regarding cell phone tracker

Finding that Tacoma Police Department deliberately withheld public records on its use of an invasive cell phone surveillance device, Pierce County Superior Court Judge G. Helen Whitener ordered the City of Tacoma to pay fines, costs and fees totallying $277,000, an amount she said is “necessary to deter future misconduct.”  The ruling came in a lawsuit seeking public records about the device.
“This is a win for everyone in Washington who believes police must be accountable to the people they serve,” said Elder Toney Montgomery, one of the Plaintiffs in the suit. “For people in communities of color especially, police surveillance is a critical issue—our communities have long been disproportionately targeted for surveillance. Today’s decision shows Tacoma must respect our right to know what kinds of surveillance our public servants are doing and for what purpose.”
The lawsuit, Banks v. City of Tacoma, was filed by the ACLU-WA on behalf of African-American community leaders who sought public records related to the police department’s use of a surveillance device known as a “cell site simulator.” Plaintiffs are concerned about the effect of police surveillance in the community, particularly on young people.
Known more commonly as “StingRays,” cell site simulators mimic cell phone towers in order to get all nearby cellular devices to connect with them. Once connected, the cell site simulator is able to lead law enforcement to the cell phone they are looking for. But due to the indiscriminate nature of how it operates, the cell site simulator also can temporarily disable all nearby phones and can be set up to capture sensitive personal information from phones belonging to anyone who happens to be nearby.
In the decision, Whitener called the city’s responses to plaintiffs’ public records requests about the cell site simulator “troubling in many regards” and found it “showed a lack of proper training and/or supervision, negligence, and unreasonableness in any explanations given for noncompliance.”
The court had already ruled in April that the city violated the state’s Public Records Act (PRA) by failing to conduct an adequate search for public records and by failing to provide and delaying the provision of 11 documents that should have been made public.
Tacoma’s use of its cell site simulator became a subject of public controversy in 2014, when local judges learned they had not been told that the devices were being used since 2008, how the devices work, or that they collect information of people not suspected of criminal activity. Tacoma was also using the cell site simulator on behalf of neighboring cities and counties, without the public’s knowledge. One detective stated under oath that officers continue to intentionally omit any mention of cell site simulators in their case reports to prevent disclosure to the public.
In response to these revelations, the Washington Legislature in 2015 unanimously placed limitations on the use of cell site simulators by police departments. The law requires law enforcement to provide judges with specific details about cell site simulators and how they will be used in a given case. It also places limitations on retention of data by requiring that any incidental information collected from bystanders not be used and be deleted promptly.
After the law went into effect, community leaders from Tacoma filed a public records request seeking documents regarding when and how Tacoma police had used the cell site simulator, the capabilities of the device, and whether and how the department complied with the new law.
When the department failed to adequately fulfill their request, the ACLU-WA in 2016 filed suit on plaintiffs’ behalf to enforce the PRA. The plaintiffs intend to use proceeds from the case to further police accountability and transparency in Tacoma.

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