In a scene soon to be repeated across California, Alameda County District Attorney Nancy O’Malley answered a raft of questions earlier this week from the county Board of Supervisors and members of the public about her office’s plan to purchase a controversial package of technology to track cellphones.

The prosecutor’s office, along with the Fremont and Oakland police departments, has been planning since 2013 to buy a Harris Corp. Hailstorm cell-site simulator and a KEYW Corp. Thoracic tracking device with federal homeland security grant money. But now O’Malley is at the vanguard of the kind of additional scrutiny all jurisdictions soon will face, thanks to two state laws recently signed by California Gov. Jerry Brown that mandate more public input and oversight of the purchase and use of such equipment.

The Electronic Communications Privacy Act means law enforcement will need a search warrant for access to digital records, including data, content, metadata and geolocation information stored on a device or server. The law also calls for warrants to search electronic devices, a requirement previously affirmed by the U.S. Supreme Court in a 2014 decision.

The new law has been hailed by privacy advocates as the most comprehensive electronic privacy regulations in the United States. For instance, it will restrict law enforcement officials’ ability to accuse people of crimes based entirely or in part on communications obtained through electronic intercepts.

The other recently passed law requires local government agencies to notify the public when law enforcement seeks to acquire a cell-site simulator to track transmissions and the location of individual mobile devices. Privacy policies also must be published before such devices can be used.

California Gov. Jerry Brown recently signed into law two bills that mandate more public input and oversight of law enforcement agencies’ purchase and use of cellphone tracking equipment.
Credit: Damian Dovarganes/Associated Press Credit: Damian Dovarganes/Associated Press

Known by names such as StingRay, Hailstorm and DRT box, these devices previously have been used without warrants. In May, Reveal uncovered the use of a StingRay without a warrant to arrest four Oakland men accused of shooting a police officer in 2013.

“This is a landmark win for digital privacy and all Californians,” Nicole Ozer, technology and civil liberties policy director at the ACLU of Northern California, said in a statement. “We hope this is a model for the rest of the nation in protecting our digital privacy rights.”

Both laws take effect in January and are not retroactive.

The California Department of Justice produces an annual report tallying electronic intercepts in the state, but it would not include information about the use of cell-site simulators. It is also unclear how many law enforcement agencies in California already have these electronic tracking technologies and how they have been used to date. There is no inventory reporting requirement in either law.

At the hearing Tuesday before the Alameda County Board of Supervisors, O’Malley said her office needs the tracking technology to investigate some crimes, terrorism reports and disaster response, but would set strict guidelines for its use.

“My office is very committed to constitutional prosecution, which is one reason why we requested we be the custodians of the equipment,” she told the supervisors.

O’Malley also appeared to be either confused about or unaware of the capabilities of cell-site simulators, asserting at one point that the devices do not collect metadata – which includes location, call history and length of communications – on all cellphones in range of the device. She was corrected by Supervisor Wilma Chan, who cited contradictory information on the Harris Corp. website.

Brian Hofer, a member of the Oakland Privacy Working Group and the oversight committee for Oakland’s Domain Awareness Center, accused O’Malley of downplaying a cell-site simulator’s capabilities. Pointing to federal restrictions on the collection of data from nontarget devices, Hofer urged the board to further research the technology before approving its purchase.

“You don’t understand the purchase you’re authorizing,” Hofer said. “The feds are telling you what this can do. Listen to them.”

The board postponed a vote on the purchase to hold another public hearing later this fall.

Ali Winston

Ali Winston is a freelance reporter, covering surveillance, privacy and criminal justice. His writing has won awards from the National Association of Black Journalists, the New York City Community Media Alliance, the City University of New York's John Jay College of Criminal Justice, the Association of Alternative Newsmedia, the San Francisco Peninsula Press Club and the Northern California chapter of the Society of Professional Journalists. Originally from New York, he is a graduate of the University of Chicago and the University of California, Berkeley.