A Pierce County Superior Court judge will hold a hearing tomorrow to determine fees, costs, penalties, and possible other actions to be imposed on the City of Tacoma in a public records lawsuit with important implications for government transparency and the privacy rights of people in Washington.
The lawsuit, Banks v. Tacoma, was filed by the ACLU-WA on behalf of African-American community leaders who sought public records related to the Tacoma 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.
Also known 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 capture sensitive personal information from phones belonging to anyone who happens to be nearby.
A Pierce County Superior Court judge has already ruled that Tacoma police violated the state’s Public Records Act 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.
“Transparency is key to maintaining healthy relationships between law enforcement and the communities they serve,” said Pastor Arthur Banks, the plantiff in the case. “The judge’s decision shows that the Tacoma Police Department will not be allowed to continue to evade public oversight.”
Tacoma’s use of its cell site simulator became a subject of public controversy in 2014, when it was reported that local judges had not been told that the devices were being used, how the devices work, or that they collect information of people not suspected of criminal activity. TPD had for years hidden its use of this surveillance equipment from the public and from the courts.
“Tacoma Police are public servants. When they purchase and use devices that encroach on the private information of individuals who are not the subject of investigation, the public has a right to know how those devices are being used,” said Lisa Nowlin, Staff Attorney at the ACLU-WA.
Tacoma originally justified its cell site simulator purchase as necessary for prevention and detection of improvised explosive devices. However, when the police department eventually released some details of how the technology was actually used, it turned out that the cell site simulators had never been deployed in that way, but instead were used in more routine investigations. Police were also using the cell site simulator on behalf of neighboring cities and counties, without the public’s knowledge.
In response to these revelations, the Washington Legislature in 2015 unanimously passed a law placing 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 TPD had used the cell site simulator, the capabilities of the device, and whether and how the department complied with the new law.
When Tacoma failed to adequately fulfill their request, the ACLU-WA in 2016 filed suit on Plaintiffs’ behalf to enforce the request.