CHARLOTTE, NC (Fred Clasen-Kelly/The Charlotte Observer) - Two Mecklenburg County Superior Court judges say they believe the public has a right to learn more about the Charlotte-Mecklenburg Police Department's secret surveillance of cellphones, despite the city's position that details about the operation must not be revealed.
Judges Richard Boner and Robert Bell told the Observer they are willing to consider unsealing some orders that authorized CMPD to use portable equipment that intercepts cellphone information from criminal suspects and innocent people alike. "I can't think of a justification once everything is over and done with" to keep the records shielded, Boner said.
The comments are significant because national privacy groups have tried unsuccessfully for years to learn how police use the device commonly known as a StingRay. It can provide officers with serial numbers, location and other information about nearby phones, laptop computers and tablets that connect to cellular networks.
CMPD says the equipment is used to target and quickly apprehend specific individuals suspected of serious felonies. City Manager Ron Carlee said last week that CMPD has procedures in place to protect constitutional rights. He said in a statement: "The equipment is not used without a court order. Even with a court order, the equipment is not used to listen to cellphone conversations or to collect information about bystanders."
On Friday, The Charlotte Observer and its news partner, WBTV, filed a petition in Superior Court to unseal Mecklenburg County records dating to 2006. The information in those records may help answer questions about circumstances when CMPD officers use the device and oversight of the surveillance.
Prominent local defense attorneys said they did not know about the investigative method until they read an Observer story two weeks ago detailing how CMPD secretly tracks suspects in serious crimes such as homicides, robberies and kidnappings by using what is generically called a cell-site simulator. The surveillance equipment, known by names such as StingRay, Hailstorm, AmberJack or TriggerFish, imitates a cell tower.
They said the secrecy denied their clients the chance to learn how law enforcement built cases against them, a fundamental part of due process. The city has acknowledged using the technology on a weekly basis for as long as eight years.
But in a recently released memo, Carlee wrote that officials can only provide limited information because the city signed a nondisclosure agreement with the FBI to obtain the equipment. Officers must get permission from the courts to use the technology, but always request that judges seal the records.
Reached on Saturday, Carlee declined to comment for this story. A spokeswoman for District Attorney Andrew Murray said the agency complies with the law and provides defendants information it receives from CMPD.
The simulators have been used by federal agencies since the 1990s to track terrorists. Local police agencies nationwide began acquiring the technology nearly a decade ago to catch criminal suspects.
The FBI has so far successfully argued that most information about cell-site simulators should remain secret because it is tied to national security. Providing details could help criminals learn to avoid detection, the agency has said.
CMPD uses the equipment to target suspects accused of serious felonies and quickly take them into custody, police Chief Rodney Monroe said in a memo.
Fred Cate, a law professor at Indiana University, said he is astounded that court records related to cell-site simulators remain hidden. Cate said it is assumed that American court records are generally open to the public.
"The StingRay is disturbing because efforts to look at it are being blocked," Cate said. "That's when I think, in a civilized society, I start to worry."
Records locked up
Courthouse visitors can access information about everything from police investigations to divorces and family feuds over money. The transparency is considered fundamental to maintaining public confidence in the courts and preventing corruption.
But documents about CMPD's cellphone tracking are kept locked in a filing cabinet.
Mecklenburg Clerk of Superior Court Martha Curran said her workers won't allow the public to see the records until a judge orders them unsealed.
In a sworn statement, Bradley Morrison, chief for the FBI's tracking technology unit in Quantico, Va., said the FBI shields from public view how, when, where and under what circumstances it deploys cell-site simulators.
The information, he said, is exempt from discovery and other public disclosure because that could "easily impair the use of this investigative method." Revealing even seemingly innocuous information could allow suspects to piece together enough details to develop countermeasures to evade detection by authorities, Morrison said.
Boner said the application for permission to use the equipment does not mention the words cell-site simulator or StingRay. Instead, he said, it lists more general terms used when investigators want to trace signals from phones, but not obtain their contents.
Senior Assistant City Attorney Judith Emken has defended how CMPD uses its cell-site simulator to track down suspects in serious and violent felonies. The equipment is an effective tool that helps make the city safer, Emken said.
However, the capacity of devices to be configured to listen to conversations and retrieve phone data worries civil liberties advocates. Carlee has said officers do not eavesdrop on conversations or store cellphone data collected from innocent people.
Boner and Bell said the applications CMPD submits to use the equipment are much less descriptive than search warrants, which are typically available to the public.
"When you see one of these motions and orders, you're in for a real letdown," Boner said. "This is not National Enquirer stuff."
It is obvious that disclosing police tactics during an investigation could help suspects avoid detection, Boner said.
But that secrecy may be unnecessary after a case is resolved, he said.
Boner said he understands concerns about revealing information tied to national security, but added there is also a need for transparency in the courts.
"If I were dealing with ISIS, I would be jumping up and down, too,"
Boner said. But he added that CMPD is generally using the surveillance tool in crimes unrelated to terrorism.
Boner and Bell both said they could not recall ever unsealing a court order that allowed police to deploy a cell-site simulator. Asked why they didn't lift motions to shield the documents from public view after investigations were over or cases had moved through the courts, they said no one has ever taken legal action to gain access to the records.
Former U.S. Magistrate Judge Brian Owsley of Texas said that Boner and Bell have the authority to make the records public without a court challenge from a newspaper, attorney or others.
Owsley said Mecklenburg residents couldn't file motions to obtain the documents in the past because authorities kept the existence of the surveillance a secret.
"The government has no interest in having their methods revealed," said Owsley, who is now a law professor at Indiana Tech University and has written about court secrecy and cellphone tracking. "The courts have no incentive. Keeping stuff sealed isn't going to draw any attention. If they are risk averse, there is an incentive in keeping it sealed."
Owsley said part of the problem is that some judges don't completely understand the technology and cannot provide meaningful judicial oversight.
"It could be a situation where the judge doesn't know or isn't aware what they're authorizing," he said.
Attorneys in the dark
Legal experts say the secrecy ignores a fundamental right necessary to assure a defendant a fair trial. By law, defendants have the right to inspect evidence the prosecution has compiled through a legal process called discovery.
North Carolina's discovery laws are among the broadest in the country.
That means prosecutors are obligated to turn over almost all reports, notes and other evidence to the defense.
But defense attorneys told the Observer they were never given information about CMPD's use of cell-site simulators.
They said they are upset because some legal experts question whether cell-site simulators violate the Constitution's prohibition against unreasonable search and seizure.
Charlotte attorney Noell Tin said he had no idea CMPD used a StingRay before reading about it in the Observer.
Tin said he took an informal survey on a group email list for attorneys and found no one else who was aware of the surveillance.
"I was profoundly disturbed," he said.
Tin said he sent Charlotte City Council members a recent Florida court ruling that found warrantless cellphone tracking violates the Fourth Amendment.
Hickory attorney Lisa Dubs said the defense should have been informed about the use of a cell-site simulator. The information would have given attorneys a chance to question police about the accuracy of the device, officers' training and other issues.
"Our law is pretty clear," Dubs said. "The prosecution can't pretend something didn't happen. That's exactly why we have discovery protection."
In an email response, a spokeswoman for Mecklenburg County District Attorney Andrew Murray said the office knew CMPD had the ability to locate suspects or missing persons by tracking their cellphones but can't "pinpoint an exact date" it learned CMPD was using a cell-site simulator.
"Our policy is to turn over all evidence provided by law enforcement and identified as discoverable by law," she wrote.
The FBI has said it believes the use of cell-site simulators is exempt from discovery because the technology is tied to national security.
Judges Bell and Boner disagreed. Both said that North Carolina's discovery law makes very few exceptions to withhold information from the defense.
"I am from the school" that discovery should be broad, Bell said.
"It's more equitable. ... It's the right thing to do."
Safety vs. Privacy?
The American Civil Liberties Union and other privacy advocates have lobbied for government officials and courts elsewhere to unseal records related to cell-site simulators, but little is still known about how police use the technology.
Critics say a position of secrecy by law enforcement means the public can't know how many local police agencies own the equipment or what happens to the data that officers gather from bystanders.
Charlotte officials have defended CMPD, saying the department balances public safety and individual constitutional rights.
Boner said he has no reason to believe that CMPD uses the surveillance inappropriately.
However, Boner said there must be a balance between keeping the city safe and informing people about how police and courts operate.