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3
4
5
6

AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF SOUTHERN
CALIFORNIA
Peter Bibring, SBN 223981
pbibring@aclusocal.org
Jessica Price, SBN 264053
jprice@aclusocal.org
13 13 West Eighth Street
Los Angeles, California 90017
Telephone:
(213) 977-9500
Facsimile:
(213) 977-5297

7 LATHAM & WATKINS LLP
Sadik Huseny, SBN 224659
8 sadik.huseny@lw.com
Hanno Kaiser, SBN 262249
9
hanno.kaiser@lw.com
Kyle Virgien, SBN 278747
l0
kyle. virgien@lw .com
505 Montgomery Street, Suite 2000
11 San Francisco, CA, 94111
Telephone:
(415) 391-0600
12 Facsimile:
(415) 395-8095
13

Luj ing Liu, SBN 300769
gavin.liu@lw.com
14 140 Scott Drive
Menlo Park, CA, 94025
15 Telephone:
(650) 463-4600
Facsimile:
(650) 395-2600
16

AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA
Michael Risher, SBN 191627
mrisher@acl unc.com
Linda Lye, SBN 215584
llye@aclunc.com
Nicole Ozer, SBN 228643
nozer@aclunc.com
Matthew Cagle, SBN 286101
mcagle@aclunc.com
39 Drumm Street
San Francisco, CA 9411 1
Telephone:
(415) 621-2493
Facsimile:
(415) 25 5-1478
Attorneys for Petitioner

17

SUPERIOR COURT OF CALIFORNIA
FOR THE COUNTY OF ORANGE

18

19 AMERICAN CIVIL LIBERTIES UNION OF
SOUTHERN CALIFORNIA, a non-profit corporation
20
Petitioner,
21
22
23
24

v.
ANAHEIM POLICE DEPARTMENT
Respondent

27
28

VERIFIED PETITION FOR
PEREMPTORY WRIT OF
MANDATE ORDERING THE
ANAHEIM POLICE DEPARTMENT
TO COMPLY WITH ITS DUTIES
UNDER THE CALIFORNIA PUBLIC
RECORDS ACT
[Cal. Gov. Code§§ 6250-6270]

25
26

CASE NO.

1+---------------------------------~

C-20

 INTRODUCTION
2

1.

This case concerns the public's right to access basic information about how their local

3

police use surveillance- what devices and technologies police use to gather information on residents,

4

what policies govern their use of a particular surveillance technology, what kinds of crimes justify the

5

use of a given surveillance device, what authorization the police get fi·om courts, and what protections

6

(if any) police have put in place to guard privacy and civil liberties.

7

2.

IMSI catchers-commonly known by the brand name "Stingrays," for one such device-

8 are highly invasive surveillance devices. They mimic cell phone towers and force all cell phones within
9

their range to register information regarding the phones' location, data, and content with the JMSI

10 catcher. IMSI catchers allow law enforcement to indiscriminately track the cell phones of everyone who
11

happens to be within the device's significant range, including suspects and bystanders. These devices

12 are capable of not only gathering the phone numbers dialed or called by a cell phone, but can track
13

individuals' locations even when they are inside their homes. Using IMSI catcher technology, law-

14 enforcement agencies can, without the assistance of wireless carriers, send signals to cell phones-

IS

whether they are located in individuals' pockets, cars, or residences-and obtain information from

16 those phones regardless of who the eel I phone owner is, what data is on the phone, or whether the cell
17 phone owner intends for the phones to be on, off, or transmitting any data whatsoever.

18

3.

Law-enforcement agencies increasingly use this extraordinarily invasive technology in

i9

routine cases, a practice that has grave civil-liberties consequences. Moreover, local agencies have been

20

unwilling to disclose even basic information about their use of these devices-information that would

21

allow the public to understand these consequences and the extent and ramifications of the government's

22

invasion of their privacy.

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4.

In July of2014, the American Civil Liberties Union of Southern California ("ACLU-

24

SC") sent the Anaheim Police Department ("Police Department") a request for documents concerning

25

the Police Department's use ofiMSI catcher technology under the California Public Records Act

26

("CPRA").

27

5.

The Police Department improperly withheld all of the documents the ACLU-SC

28
1
VERIFIED PETITION FOR WRIT OF MANDATE

 requested. By doing so, the Police Depattment violated established law.
2

6.

In adopting the CPRA, the California legislature declared that "access to information

3 concerning the conduct of the people's business is a fundamental and necessary right of every person in
4

this state." Cal. Gov. Code§ 6250. This principle of transparency has also been enshrined in Section

5 3(b) of Article I ofthe state's constitution. The records the ACLU-SC seeks in this action lie at the core
6 of this statutory and constitutional purpose: the people have the right to know the circumstances under
7 which their government invades their privacy in their name. By this petition and pursuant to California
8 Government Code§§ 6250-6270, the ACLU-SC now seeks a peremptory writ of mandate to compel the
9 Police Department to produce documents in compliance with the CPRA.
10

11

THE PARTIES
7.

Petitioner the ACLU-SC is a non-profit organization under the laws ofthe state of

12 California, and is an affiliate of the American Civil Liberties Union ("ACLU"), a national organization
13

of 500,000 members dedicated to the principles of libetty and equality embodied in both the United

14 States and California Constitutions and our nations' civil rights laws. Both the ACLU-SC and the
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ACLU have long been concerned about the impact of new technologies on the constitutional protections

16 for privacy. See, e.g., United States v. Jones, 565 U.S._, 132 S.Ct. 945 (2012) (amicus curiae in case
17

holding that police officers' warrantless placement of GPS device on car to track its location violated

18 Fourth Amendment); City of Ontario v. Quon, 560 U.S. 746 (2010) (amicus curiae in case addressing
19 police officers' expectation ofprivacy in messages on department-issued pagers). As part of its
20 advocacy, the ACLU-SC routinely uses public-records laws to gather information about the policies and
21

practices of local, state, and federal governments, in order to compile information for publication in

22 reports published in hard copy and distributed electronically through the ACLU-SC's website, in amicus
23

briefs, and through the media. The ACLU-SC therefore has a strong interest in the outcome of these

24 proceedings and in the Police Department's performance of its legal duties.
25
26

8.

The ACLU-SC is a person and a member of the public with the right under the CPRA to

inspect public records and to seek relief in a cowt of competent jurisdiction to enforce that right. Cal.

27 Gov. Code§§ 6252(b) and (c), 6253, 6258, 6259.
28
2

VERIFIED PETITION FOR WRIT OF MANDATE

 9.

Respondent the Anaheim Police Department is located in Orange County, California.

2

The Police Department is a local public agency w ithin the meaning of the CPRA. Cal. Gov. Code§

3

6252(d).

4
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JURISDICTION AND VENUE
I 0.

This Court has jurisdiction under Californ ia Government Code§§ 6258 and 6259,

6 Cali forn ia Code of Civil Procedure§ 1085, and Article 6, § I 0 of the Cali forn ia Constitution.
7

l l.

Venue is proper in th is Court under California Code of Civil Procedure§ 394 because the

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Police Depa1tment is a local agency situated in Orange County. Venue is additiona lly proper in this

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Court under Cali forni a Code of C ivil Procedure§ 393 because the acts and omissions forming the basis

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of the cause of action occurred in Orange County and the Po lice Department is a public officer. The

11 records in question, or some pmtion ofthem, are situated in Orange County. Cal. Gov. Code§ 6259;
12

Cal. Code Civ. Proc. § 401(1).

THE CALIFORNIA PUBLIC RECORDS ACT

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12.

Under the CPRA, upon request, any publ ic agency must make publicly available for

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inspection and copying any record that it prepared, owns, uses, or retains that is not subject to the

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CPRA's statutory exemptions to disclosure. Cal. Gov. Code§ 6253.

17

13.

Before withholdi ng any record responsive to a valid request under the CPRA, the agency

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must "demonstrat[e] that the record in question is exempt under [the CPRA's] express provisions ... or

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that on the facts of the particular case the p ublic interest served by not disclosing the record clearly

20

outweighs the public interest served by d isclosure of the record." Cal. Gov. Code§ 6255.

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14.

Any person may institute proceedings by veri tied petition for a writ of mandate to

22

enforce her right to inspect or receive a copy of any public record or class of public records. Cal. Gov.

23

Code§§ 6258, 6259.

24

15.

"The court shall decide the case after examining the record in camera, if petmitted by

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subdivision (b) of Section 9 15 ofthe Evidence Code, papers filed by the parties and any oral argument

26

and additional evidence as the cowt may allow." Cal. Gov. Code§ 6259(a). "Ifthe cowt fmds that the

27

failure to disclose is not justified, it shall order the publ ic official to make the record public." Cal. Gov.

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3
VERIFIED PETITION FOR WRIT OF MANDATE

 1 Code § 6259(b).
2

16.

The court must award court costs and reasonable attorney fees to a prevailing petitioner,

3 to be paid by the agency from which the petitioner requested the records. Cal. Gov. Code § 6259(d).

THE CALIFORNIA CONSTITUTION

4
5

6

17.

Section3(b) of Article 1 of California's constitution entrenches and venerates the

public's right to access information as set forth in the CPRA. There is no ambiguity: "[t]he people have

7 the right of access to information concerning the conduct of the people's business, and, therefore, the
8 meetings of public bodies and the writings of public officials and agencies shall be open to public
9 scrutiny." Cal. Const. Art. 1, § 3(b)(1). Further, the California Constitution instructs that a CPRA
l 0 provision must "be broadly construed if it furthers the people's right of access, and narrowly construed if
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it limits the right of access." See Cal. Const. Art. 1, § 3(b)(2).

FACTUAL ALLEGATIONS

12
13

18.

An IMSI catcher is a surveillance device available to law enforcement entities and

14 capable of collecting inf01mation emitted by cellular devices including cell phones, all without the
15

knowledge or consent of device owners. "IMSI" refers to the unique "international mobile subscriber

16 identity" number assigned to cellular devices.
17

19.

IMSI catchers function by masquerading as the cell phone towers used by wireless

18

companies such as AT&T and T-Mobile. By mimicking an actual cell phone tower, the IMSI catcher

19

forces cell phones within its range into emitting identifying signals. This information can be used to

20 identify each phone's unique numeric identifier and location, or to capture the communications content
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of targets and bystanders alike. Law enforcement can also use the unique identifiers to demand

22

information about individuals from wireless companies.'

23

20.

IMSI catchers operate in a sweeping, dragnet manner. An IMSI catcher gathers

24 information from all locations within its range, including private spaces hidden behind walls.
25

Depending on an IMSI catcher's signal strength, its broadcast radius can reach up to several kilometers,

26
l Jennifer Valentino-Devries, How 'Stingray' Devices Work, Digits Tech News & Analysis From the
WSJ, WALL STREET JOURNAL ONLIN E (Sept. 21, 20 II), http:/lblogs.wsj .com/digits/2011109/21/how28 stingray-devices-work.

27

4
VERIFIED PETITION FOR WRIT OF MANDATE

 allowing it to scoop up information from all private locations in the area. Because of the way they
2 function, IMSI catchers may result in prolonged electronic location tracking and the collection of data
3 associated with individuals not subject to any investigation?
4

21.

Law enforcement operates IMSI catchers in a manner that prevents individuals from

5 knowing that information emitted by their cell phones has been collected. IMSI catchers mimic the
6 cellular network infrastructure that individuals trust and rely on every day. Because IMSJ catchers can,
7 on their own, force cell phones to transmit information, they do not require the knowledge or consent of
8 phone owners in order to operate. The ability oflMSI catchers to operate through building walls and
9 physical structures fwther prevents individuals from knowing when the devices are being used to
10 capture their private information.3
22.

11

With the appropriate configuration, IMSI catchers can also capture the content of

12 communications, such as voice calls and text messages. And their sweep is vast: the device can be
13

maintained at police stations, other public venues, or mounted on cars or even airplanes. 4

14

23.

IMSI catchers are used freely by law-enforcement agencies throughout the country.

15 Law-enforcement agencies use these devices with little or no oversight by the public, legislative
16 agencies, or courts and can obtain cellular data and information by using IMSI catchers without the
17 assistance or even the knowledge of the cellular providers themselves. Some law-enforcement agencies
18 seek a warrant to authorize the use of an IMSI catcher; others seek a Pen Register and Trap and Trace
19
2

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25
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See Kate Klonick, Stingrays: Not Just for the Feds!, SLATE (Nov. I 0, 2014),
http://www.slate.com/articles/technology/future_tense/20 14/11 /stingrays_imsi_catchers_how_local_ law
_enforcement_uses_an_invasive_surveillance.html ("That's every location and outgoing call and text
log of every phone within a cettain radius- up to several kilometers .... "); Kim Zetter, Government
Fights for Use ofSpy Tool That Spoofs Cell Towers, WIRED (March 29, 2013),
http://www. wired.com/20 13/03/gov-fights-stingray-case/ ("It captures data from 'all wireless devices in
the immediate area of the FBI device that subscribe to a particular provider' according to government
documents- including data of innocent people who are not the target of the investigation.").
3
See Kim Zetter, Secrets of FBI Smartphone Surveillance Tool Revealed in Court Fight, WIRED (April
9, 20 13), http://www. wired.corn/20 13/04/verizon-rigmaiden-aircard/all/ ("The stingray then
'broadcast[s] a very strong signal' to force the [cellular device) into connecting to it ....").
4
See Michael Bott and Thorn Jensen, Cellphone spying technology being used throughout Northern
California, NEWS I 0 ABC (March 6, 2014),
http://www.news 1O.net/story/news/investigations/watchdog/20 14/03/06/cellphone-spying-technologyused-throughout-northern-cali fomia/6144949/.

5
VERIFIED PETITION FOR WRIT OF MANDATE

 authorization from the court. Other law-enforcement agencies, however, may not seek judicial
2

authorization at all for the use of an IMSI catcher. When they do seek a warrant or court order, law

3

enforcement may not adequately explain the nature of IMSI catchers to the court: multiple news repot1s

4

have uncovered evidence of judges unwittingly signing hundreds of warrants authorizing the use of

5

TMSI catchers.5
24.

6
7

Much is known about the existence and capabi li ties ofTMSI catchers. 6 The Department

of Justice has made publicly available extensive information on the agency's legal positions regarding

8 their use and hundreds of articles have been published about TMSJ catchers, their capabilities, and

9 controversies in criminal cases in which the use oflMSI catchers may have been a factor in identifying a
l0

suspect's location. These news articles describe how IMST catchers work. They also describe the

11

technology underlying IMSI catchers, including technical background, descriptions of how they

12

function, estimates of their service range, and details about the information they are capable of

13

monitoring and collecting. However, little is known about how much public taxpayer money law-

14 enforcement agencies spend on these devices, and about their deployment: i.e., how and the extent to
15

which law-enforcement agencies use them, what law-enforcement agencies do with the data on innocent

16

bystanders that is collected by the devices, and whether certain law-enforcement agencies permit any

17
18
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22
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25
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27
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5

See, e.g., Ell en Nakashima, Secrecy around police surveillance equipment proves a case's undoing,
WASIIINGTON PosT, Feb. 22, 20 15; Adam Lynn, Tacoma police change how they seek permission to use
cellphone tracker, THE NEWS TRIBUNE, Nov. 15, 2014; Cyrus Farivar, Legal experts: Cops lying about
cell tracking "is a stupid thing to do", ARS TECHNICA (June 20, 20 14), http://arstechnica.com/techpol icy/20 14/06/legal-experts-cops-lying-about-cell-tracking-is-a-stupid-thing-to-do/; Kim Zetter,
Florida Cops ' Secret Weapon: Warrantless Cellphone Tracking, WIRED (March 3, 20 14),
http://www.wired.com/2014/03/stingray/; Ellen Nakashima, Little-known Surveillance Tool Raises
Concerns by Judges, Privacy Activists, WASH. POST, March 27,2013.
6
Several academic papers explain the functioning ofthe technology. See, e.g., Daehyun Strobel, IMSI
Catcher, Seminararbeit, Ruhr-Universitat, Bochum, Germany, 13, July 13, 2007; Juliam Dammann,
"TMSI-Catcher and Man-in-the-Middle Attacks," presentation at Seminar on Mobile Security,
University of Bonn at 5, Feb. 9, 20 II. Security researchers have also duplicated and explained IMSICatcher technology to the public. Sean Hollister, Hacker intercepts phone calls with homebuilt $1,500
JMSI catcher, claims GSM is beyond repair, ENGADGET (July 3 1, 20 I 0),
http://www.engadget.com/20 10/07/31/hacker-intercepts-phone-calls-with-homebuilt-1-500-imsicatcher/.
6
VERIFIED PETITION FOR WRIT OF MANDATE

 judicial oversight of their use oftMSI catchers. 7

2

25.

On July 29,20 14, the ACLU-SC sent a CPRA request to the Police Department for the

3 disclosure of certain public records. See Cal. Gov. Code§§ 6258, 6252(c) and (e), 6253. A true and
4 correct copy of this request is attached to this petition as Exhibit A. The request sought the following
5 records related to Police Department's use oflMSI catcher surveillance technology, all of which are

6 "public records" under the CPRA:
a. Records related to the number of Cell Site Simulators owned or used by the

7

agency;

8
9

b. Records related to the technical specifications of any such Cell Site Simulators8 ;

10

c. Records related to policies, practices, customs, or training on the use of such Cell
Site Simulators, including when and how to seek a warrant;

II

12

d. Records mentioning the number of times agency employees have used Cell Site

13

Simulators from January 1, 2008 to the present, including the number of times a

14

warrant was obtained for such use;
e. Records refen·ing to any applications for grants or other funding for the

15

acquisition of such Cell Site Simulators;

16
f.

17

Records referring to what information and data agency officials collect through

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the use of Cell Site Simulators, such as IMSl numbers, names, PEN registers, text,

19

or audio communication;
g. Records related to policies, practices, customs, or training regarding the handling

20
21

of data obtained by Cell Site Simulators, including but not limited to access

22

restrictions on such data, security of such data, limitations on sharing data with

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7

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25
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27

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See, e.g., Fred C1asen-Kelly, CMPD 's cellphone tracking cracked high-profile cases, CHARLOTTE
OBSERVER, Nov. 22, 2014; John Kelly, Cellphone spying: It 's notjustthe NSA, USATODAY, June 13,
20 14; Ryan Gallagher, Meet the Machines That Steal Your Phone's Data, ARS TECHNICA (Sept. 25,
20 13), http://arstechnica.com/tech-policy/20 13/09/meet-the-machines-that-steal-yourphones-data/
(describing various models of HatTis Corporation's cell site simulators and related equipment).
8 This petition does not seek to enforce this one category of documents in the ACLU-SC's CPRA
request. lt seeks to enforce all other categories in the request, including seeking documents that fa ll
under other categories of the request and also fall under this category.
7

VERIFIED PETITION FOR WRIT OF MANDATE

 other entities and oversight and auditing practices to ensure any restrictions on use

2

or access;

3

h. Records reflecting standard language, forms, or templates used by the agency for

4

obtaining a warrant or other court order, including subpoenas, authorizing the use

5

of StingRay devices or other Cell Site Simulator technologies;

6

1.

Unsealed warrants or court orders reflecting the use of StingRay devices or other
Cell Site Simulator technologies from January 1, 2008 to the present;

7

8

J.

9

The number oftimes each year that data gathered through the use of StingRay
devices or other Cell Site Simu lator technologies was used in the investigation of

10

any crime from January 1, 2008 to the present;

11

k. Which depa1tments and individuals currently have access to the data gathered by

12

Cell Site Simulator devices or technologies and for what pw-poses;

I.

13

All other Records including but not limited to emails, notes, presentations,

14

manuals proposals, pol icies, maps, computer files, or other documents related to

15

Cell Site Simulators owned, operated, or used by the agency that are not

16

responsive to the other requests in this letter.

17 Exhibit A, 1-3.
18

26.

For any records the Police Department contends are subject to a CPRA exemption, this

19 request instructed the Police Department to provide a written response describing with specificity each
20

record withheld and the specific exemption or exemptions that apply to that record. The request also

21

instructed the Police Department that, even if it contends that some records or portions of records are

22 subject to an exemption, it must provide the records and portions of records not subject to any
23
24

25
26
27

exemption. Exhibit A at 3.
27.

The ACLU-SC requested that copying fees be waived and indicated its willingness to

pay fees in the event that Police Department would not waive the copying fees. Exhibit A at 3.
28.

On August ll, 2014, the Police Department, through the City Attorney's Office of

Anaheim, responded to the ACLU-SC's request. A true and correct copy of this response is attached as

28

8
VERIFIED PETITION FOR WRIT OF MANDATE

 Exhibit B. This response took the position that the ACLU-SC's twelve enumerated requests did not
2

reasonably describe the records sought to be produced. Without further specificity, the Police

3 Department listed Cal. Gov. Code §§ 6254(f), 6254(k), and 6255, the Trade Secret Privilege (Evidence
4

Code§ 1060), and the Official Information Privilege (Evidence Code§§ 1040(b)(2), 104l(a)(2)) as

5

support for its position that all of the requested records were exempt from disclosure. Despite the

6

ACLU-SC's explicit offer to speak with the Police Department to clarify its requests, the Police

7

Department still took the position that it would not produce because, among other reasons, the requests

8 were not adequately specific.
9

29.

On September 29, 2014, the ACLU-SC replied to the Police Department's letter,

10

explaining that the Police Department's blanket objections were not adequate to justify withholding

11

under the CPRA. See Cal. Gov. Code§ 6255. The ACLU-SC also responded to the Police

12

Department 's claims that the requests did not reasonably describe the records sought to be produced,

13

offering to work with the Police Department to clarify or appropriately narrow the requests. A true and

14

correct copy of this letter is attached as Exhibit C.

15

30.

Not having received a response from the Police Department, the ACLU-SC again reached

16 out on October 10, 2014 with a letter offering to clarify any confusion the Police Department might have
17
18

about the records sought. A true and correct copy of this letter is attached as Exhibit D.
31.

On October 14,2014, the Police Department replied with another letter, in which it

19

maintained the positions it set out in its initial letter, while acknowledging that records responsive to the

20

ACLU-SC's request existed. A true and correct copy of this letter is attached as Exhibit E.

21
22
23
24
25
26
27

32.

To date, the Police Department has not produced a single document in response to the

ACLU-SC's requests.
FIRST CAUSE OF ACTION
(for a writ of mandate compelling production of documents under the California Public Records Act,
Cal. Gov. Code §§ 6250-6270)
33.

The ACLU-SC incorporates by reference the allegations of paragraphs 1 through 32

above as though fully set forth herein.
34.

Under the CPRA, the ACLU has a right to inspect, and the Police Department has a duty

28
9
VERIFIED PETITION FOR WRIT OF MANDATE

 to provide promptly and without delay, public records subject to disclosure.
2

35.

The ACLU submitted a valid request for records under the CPRA on July 29, 2014. As it

3 stated in this request, the ACLU was at all times ready to pay any associated fees.
4

36.

The Police Department adm its that it possesses records responsive to the ACLU's

5 requests.

6

37.

The Police Department cannot demonstrate that any record subject to the ACLU's

7 requests, or any portion of those records, is exempt under express provisions of the CPRA or any other
8 authority, or that on the facts of this particular case the public interest served by not disclosing the
9 record clearly outweighs the public interest served by disclosing the record.

PRAYERFORRELIEF

10
11
12
13

WHEREFORE, the ACLU-SC prays as follows:

J.

That the Court issue a peremptory writ of mandate directing the Police Department to

provide the ACLU-SC with all requested records;

14

2.

That the ACLU-SC be awarded attorneys' fees and costs; and

15

3.

For such and further relief as the Court deems proper and just.

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25

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VERIFIED PETITION FOR WRIT OF MANDATE

 1 Dated: March 10, 2015

Respectfully submitted,

~

2
By:
3
4

Jessica G. Price

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II

VERIFIED PETITION FOR WRIT OF MANDATE

 1
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AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF SOUTHERN CALIFORNIA
Peter Bibring, SBN 223981
pbibring@aclusocal.org
Jessica Price, SBN 26405
jprice@aclusocal.org
1313 West Eighth Street
Los Angeles, California 90017
Telephone:(213) 977-9500
Facsimile: (213) 977-5297
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF
NORTHERN CALIFORNIA
Linda Lye, SBN 215584
llye@aclunc.com
Michael Risher, SBN 191627
mrisher@aclunc.com
Nicole Ozer, SBN 228643
nozer@aclunc.com
Matthew Cagle, SBN 286101
mcagle@aclunc.com
39 Drumm StStreet
San Francisco, CA 94111
Telephone:(415) 621-2493
Facsimile: (415) 255-1478
LATHAM & WATKINS LLP
Sadik Huseny, SBN 224659
sadik.huseny@lw.com
Hanno Kaiser, SBN 262249
hanno.kaiser@lw.com
Kyle Virgien, SBN 278747
kyle.virgien@lw.com
505 Montgomery St
San Francisco, CA, 94111
Telephone:(415) 391-0600
Facsimile: (415) 395-8095
Lujing Liu, SBN 300769
gavin.liu@lw.com
140 Scott Dr
Menlo Park, CA, 94025
Telephone:(650) 463-4600
Facsimile: (650) 395-2600

23
24

Attorneys for Petitioner

25
26
27
28
12
VERIFIED PETITION FOR WRIT OF MANDATE

 VERIFICATION
I, Jessica Price, am a Staff Attorney at the American Civil Liberties Union of
Southern California. I have read the foregoing Verified Petition for Peremptory Writ of
Mandate Ordering the Anaheim Police Department to Comply with its Duties under the
California Public Records Act, and the facts alleged in paragraphs 4 and 25-32 are within my
knowledge, and I know them to be true.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Jessica G. Price

13

 VERIFICATION
I, Hector 0. Villagra, am the Executive Director of the American Civil Liberties Union of
Southern California. I have read the foregoing Verified Petition for Peremptory Writ of Mandate
Ordering the Anaheim Police Depattment to Comply with its Duties under the California Public
Records Act, and the facts alleged in paragraph 7 are within my knowledge, and I know them to
be true. The allegations in paragraphs 1-6 and 8-41 are stated on information and belief and as to
those matters I believe them to be true.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and conect.

Dated:

14

 EXHIBIT A

Via United States Postal Service Certified Mail
July 29, 2014
Anaheim Police Department
c/o Linda N. Andal, CMC
City Clerk, City of Anaheim
200 S. Anaheim Blvd., #217
Anaheim, CA 92805
Re:

California Public Records Act Request re: Cell Site Simulators, or “StingRays”

To Whom It May Concern:
The ACLU of Southern California (“ACLU SoCal”) has long been concerned by the
increasing use of new surveillance technologies by law enforcement agencies across California
without appropriate privacy safeguards. One such technology that raises concerns are “cell site
simulators.” Also called “IMSI catchers,” referring to the International Mobile Subscriber
Identity that uniquely identifies each cellular device, or StingRays, after the brand name of one
such device sold by the Harris Corporation., Cell site simulators mimic a wireless carrier’s
antenna and base station. 1 The simulator signals to devices in the area, and wireless devices in
the area respond and identify themselves, communicating with the device as if it were a wireless
carrier’s cell tower. This allows the user to identify the location of all mobile devices in the area,
and potentially other information about the device or its communications.
Because of our concerns with the expanding use of Stingrays and other cell site
simulators, I am writing to request, pursuant to the California Public Records Act (California
Government Code § 6250 et seq.), a copy of the following public records related to the use of
cell site simulators that are in possession of your agency:
(1)

All Records related to the number of Cell Site Simulators owned, operated and/or used by
the agency, unit, position and/or individuals with access to and/or control over the
devices.2

1

For purposes of these requests, the term “Cell Site Simulators” shall be interpreted to include
“IMSI catchers”, or other technologies designed to imitate the cellular towers or base stations of
wireless carriers and receive signals (including IMSI information) emitted from wireless cellular
telephones, including but not limited to the Gossamer, Triggerfish, Hailstorm, Kingfish,
Amberjack, or Digital Analyzer.
2
The term “Records,” for purposes of these requests, is defined to include “writing” as that term
is defined by Govt. Code § 6252(g), as “any handwriting, typewriting, printing, photostating,
photographing, photocopying, transmitting by electronic mail or facsimile, and every other
1313
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(2)

All Records related to the technical specifications of any Cell Site Simulators owned,
operated, used or sought by the agency.

(3)

All Records related to the policies, practices, customs, or training on the use of Cell Site
Simulators, including but not limited to any policies, practices, customs, or training on
when and how to seek a warrant to use the devices or whether there are any locations on
where Cell Site Simulators can be used.

(4)

All Records related to, referring to, or mentioning the number of times agency employees
have used Cell Site Simulators from January 1, 2008 through present, as well as the
number of those instances agency employees obtained a warrant to use the device.

(5)

All Records relating or referring to any applications for grants or other funding seeking to
pay, in part or in whole, for Cell Site Simulators to be operated or used by the agency
from January 1, 2008 through present.

(6)

All Records relating or referring to what information and data agency officials collect
through the use of Cell Site Simulators (such as IMSI numbers, names, PEN registers,
text or audio communications).

(7)

All Records relating or referring to any policies, practices, protocols or training relating
to the handling of data obtained by Cell Site Simulators, including but not limited to
access restrictions on such data, security of such data, limitations on sharing data with
other entities, and oversight and auditing practices to ensure any restrictions on use or
access are followed.

(8)

All Records reflecting standard language, form(s) or template(s) utilized by the agency
for requesting a warrant or other court order, including subpoenas, authorizing use of the
StingRay device or other cell site simulator technologies or technologies to detect radio
signals emitted from wireless cellular telephones from January 1, 2008 through present.

(9)

Unsealed warrants or court orders reflecting the use of the StingRay device or other cell
site simulator devices or technologies to detect radio signals emitted from wireless
cellular telephones from January 1, 2008 through present.

(10) The number of times each year that data gathered through use of the StingRay or other
cell site simulator devices or technologies was used in the investigation of any crime,
including the role, if any, it played in identifyin, arresting and/or convicting suspects
from January 1, 2008 through present.

means of recording upon any tangible thing any form of communication or representation,
including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record
thereby created, regardless of the manner in which the record has been stored,” and includes but
is not limited to emails, notes, presentations, manuals, proposals, policies, maps, training
materials, powerpoints, handouts, computer files, memos, drafts or other documents.
16

 Page 3

(11) Which departments, units, assignments individuals currently have access to the data
gathered by cell site simulator devices or technologies to detect radio signals emitted
from wireless cellular telephones and for what purposes.
(12) All Records, including but not limited to emails, notes, presentations, manuals, proposals,
policies, maps, computer files, or other documents, related to cell site simulators owned,
operated and/or used by the agency or its employees, not responsive to one of the other
requests in this letter.
These requests are made pursuant to the California Public Records Act (“CPRA”),
California Government Code § 6250 et seq. The CPRA requires responding agencies to provide
a response within ten (10) days of receipt of a request. See Gov. Code § 6256.
In enacting the PRA, the Legislature recognized that “a requester, having no access to
agency files, may be unable to precisely identify the documents sought. Thus, writings may be
described by their content. . . . An agency is thus obliged to search for records based on criteria
set forth in the search request.” California First Amendment Coalition v. Superior Court, 67 Cal.
App. 4th 159, 165-66 (1998); see also § 6253(b). The PRA also requires the government to
“assist the member of the public make a focused and effective request that reasonably describes
an identifiable record or records” by taking steps to “[a]ssist the member of the public to identify
records and information that are responsive to the request or to the purpose of the request, if
stated. § 6253.1(a). An agency that receives a request must also “[p]rovide suggestions for
overcoming any practical basis for denying access to the records or information sought.” Id.
If any records are claimed to be exempt from disclosure, I request that: (1) you exercise
your discretion to disclose some or all of the records notwithstanding the exemption; and (2)
with respect to records containing both exempt and non-exempt content, you redact the exempt
content and disclose the rest, consistent with California Government Code § 6253(a).
Additionally, if any records are withheld or redacted, please provide a written response that
describes with specificity each and every record that is being withheld or redacted and the
claimed reason for exemption under the California Public Records Act, along with supporting
legal authority or authorities.
I request that you waive any copying fees because the ACLU of Southern California is a
non-profit civil rights organization. See North County Parents Organization v. Department of
Education, 23 Cal. App. 4th 144 (1994). No part of the information obtained will be sold or
distributed for profit. If you do not agree to waive the copying fees, please inform me of any
potential duplication costs exceeding $50.00 prior to copying.
I also request that you provide any public record identified above that exists in the
following electronic formats to me in that electronic format, instead of in paper format: PDF
format or all Microsoft Office formats, including Word, Excel, and PowerPoint. See California
Government Code § 6253.9.
I look forward to working with you to obtain the public records we have requested and
look forward to your response to this request within ten days of receipt of this letter. See

17

 Page 4

California Government Code § 6253(c). Please send all public records responsive to this request
to my attention, either by mail or email.
If you have any questions about this request, please do not hesitate to contact me at (213)
977-5295 or my legal assistant, Geneva Tien, at (213) 977-5279.
Sincerely,

Peter Bibring
Staff Attorney
ACLU of Southern California
1313 West 8th Street
Los Angeles, CA 90017
pbibring@aclusocal.org

18

 EXHIBIT 

City of Anaheim

OFFICE OF THE CITY ATTORNEY

August II, 2014
Mr. Peter Bibring
Staff Attorney
ACLU of Southern California
1313 West 8'h Street
Los Angeles, CA 90017
Re:

Public Records Act Request (Gov. Code§ 6250, et seq.)
Request No. 07312014-3

Dear Mr. Bibring:
The City of Anaheim ("City") is in receipt of your Public Records Act
request dated July 29,2014 wherein you have requested the following records:
I. "All records related to the number of Cell Site Simulators owned, operated
and/or used by the agency, unit, position and/or individuals with access to and/or
control over the devices;"
2. "All records related to the technical specifications of any Cell Site
Simulators owned, operated, used or sought by the agency;"
3. "All records related to the policies, practices, customs or training on the use
of Cell Site Simulators, including but not limited to any policies, practices, customs
or training n when and how to seek a warrant to use the devices or whether there are
any locations where Cell Site Simulators can be used;"
4. "All records related to, referring to or mentioning the number of times
agency employees have used Cell Site Simulators from January I, 2008 through
present, as well as the number of those instances agency employees obtained a
warrant to use the device;"
5. "All records relating or referring to any applications for grants or other
funding seeking to pay, in part or in whole, for Cell Site Simulators to be operated
or used by the agency from January I, 2008 through present;"
6. "All records relating or referring to what information and data agency
officials collect through the use of Cell Site Simulators (such as IMSI numbers,
names, PEN registers, text or audio communications);"
7. "All records relating or referring to any policies, practices, protocols or
training relating to the handling of data obtained by Cell Site Simulators including,
but not limited to, access restrictions on such data, security of such data, limitations
on sharing data with other entities and oversight and auditing practices to ensure
any restrictions on use or access or followed;"
8. "All records reflecting standard language, form(s) or template(s) utilized by
the agency for requesting a warrant or other comi order, including subpoenas,
authorizing use of the StingRay device or other cell site simulator technologies or
200 S. Anaheim Blvd., Suite 356
Anaheim, California 92805
TEL (714) 765·5169
FAX (714) 765-5123
www.anaheim.net

19

 Mr. Peter Bibring
August II, 2014
Page 2
technologies to detect radio signals emitted from wireless cellular telephones fi·om
January I, 2008 through present;"
9.
"Unsealed warrants or court orders reflecting the use of StingRay device
or other cell site simulator devices or technologies to detect radio signals emitted
from wireless cellular telephones fi·om January I, 2008 through present;"
I 0.
"The number of times each year that data gathered through use of the
StingRay or other cell site simulator devices or technologies was used in the
investigation of any crime, including the role, if any, it played in identifying, arresting
and/or convicting suspects fi·om January I, 2008 through present;"
II.
"Which departments, units, assignments, individuals currently have access
to the data gathered by cell site simulator devices or technologies to detect radio
signals emitted from wireless cellular telephones and for what purposes;" and
12.
"All records including, but not limited to, emails, notes, presentations,
manuals, proposals, policies, maps, computer files or other documents related to cell
site simulators owned, operated and/or used by the agency or its employees, not
responsive to one of the other requests in this letter."
Overall, your request does not reasonably describe or identify the records sought to be
produced. Government Code § 6253(b ). In addition, the records you seek are exempt from
disclosure pursuant to the following provisions of the Public Records Act:
• The records are subject to the Trade Secret Privilege (Evidence Code §I 060 and
Government Code §6254(k));
• The records are subject to the Official Information Privilege (Evidence Code §§1040(b)
(2), 1041(a)(2));
• Documents reflecting police techniques or "security procedures" are expressly exempt
from disclosure pursuant to Government Code §6254(f); and
• The records are subject to the public interest exemption provided by Government Code
§6255.
Should you have any questions, please contact the undersigned. Thank you for your kind
cooperation in this regard.
Very truly yours,
Michael R.W. Houston, City Attornex.

.,

.../

Bryn· . Morley
Deputy ity Attorney
cc:

Jennifer Hall, City Clerk

Linda Andal, City Clerk
Barbara Nail, APD

104092

20

. /

 EXHIBIT 

    

90 YEARS OF YOR 
Vin United States Posted 1. ervi?ee Certified Matt
September 29, 2014

Anaheim Police Department
c/o M. Morley

Office of the City Attorney
200 S. Anaheim Blvd, #365
Anaheim, CA 92805

Re: July 29, 2014 Public Records Act Request re: Cell Site Simulators, or ?Stingrays?
To Whom It May Concern:

On July 29, 2014, the ACLU ofSouthern California SoCal?) mailed to your
agency a request for certain public records, pursuant to the California Public Records Act
Cal. Gov?t Code 6250 et seq. The request concerned records of ?cell site
simulators,? also known as StingRays, that are in the possession of your agency. Your response
dated August 1 l, 2014, however, was not adequate to discharge your agency?s statutory duties.

To the extent your agency has determined that part or all of the requested records are not
disclosable or are exempt from disclosure, you must?in writing ?justify withholding? by
speci?cally ?demonstrating? that the records are exempt as applied to the ?facts of the particular
case.? Cal. Gov?t Code 6255. Blanket objections and citations do not satisfy this statutory
obligation. ee Am. Civil Liberties Union ofN. Cat. v. Super. Ct, 202 Cal. App. 4th 55, 82 (Cal.
Ct. App. 201 l) do not believe an agency?s bare conclusion that information is not
responsive to a request is any more self?explanatory than its bare conclusion that information is
exempt. . . . [T]he agency must be required to provide the requesting party ?adequate speci?city .
. . to assur[e] properjustil'ication by the governmental agency?) (citing Vaughn v. Rosen, 484
F.2d 820, 827 (DC. Cir. 1973)).

 

I look forward to working with you to obtain the public records we have requested. if
you think that our request can be improved by any narrowing or clarification, please do not
hesitate to write me atjprice@aclusocal.org or call me at (213) 977?5233.

    

Jesca Price
Staff Attorney

Enclosures: Request dated July 29, 2014
Response dated August 1 i, 2014

 

1313 WEST EIGHTH STREET LOS ANGELES CA 90017 213.977.9500 213.977.5299

21

City of Anaheim

OFFICE OF THE CITY ATTORNEY

August 11,2014
Mr. Peter Bibring
Staff Attorney
ACLU of Southern California
13 13 West 8111 Street
Los Angeles, CA 90017
Re:

Public Records Act Request (Gov. Code§ 6250, et seq.)
Request No. 07312014-3

Dear Mr. Bib ring:
The City of Anaheim ("City") is in receipt of your Public Records Act
request dated July 29, 2014 wherein you have requested the following records:
1. "All records related to the number of Cell Site Simulators owned, operated
and/or used by the agency, unit, position and/or individuals with access to and/or
control over the devices;"
2. "All records related to the technical specifications of any Cell Site
Simulators owned, operated, used or sought by the agency;"
3. "All records related to the policies, practices, customs or training on the usc
of Cell Site Simulators, including but not limited to any policies, practices, customs
or training n when and how to seek a warrant to use the devices or whether there are
any locations where Cell Site Simulators can be used;"
4. "All records related to, referring to or mentioning the number of times
agency employees have used Cell Site Simulators from January 1, 2008 through
present, as well as the number of those instances agency employees obtained a
warrant to use the device;"
5. "All records relating or referring to any applications for grants or other
funding seeking to pay, in part or in whole, for Cell Site Simulators to be operated
or used by the agency from January 1, 2008 through present;"
6. "All records relating or referring to what information and data agency
officials collect through the use of Cell Site Simulators (such as JMSI numbers,
names, PEN registers, text or audio communications);"
7. "All records relating or referring to any policies, practices, protocols or
training relating to the handling of data obtained by Cell Site Simulators including,
but not limited to, access restrictions on such data, security of such data, limitations
on sharing data with other entities and oversight and auditing practices to ensure
any restrictions on use or access or followed;"
8. "All records reflecting standard language, form(s) or templatc(s) utilized by
the agency for requesting a warrant or other court order, including subpoenas,
authorizing use of the StingRay device or other cell site simulator technologies or
2DO S.l\naheim Blvtl., Suite 356
Auahe!m, California 92805

TEL (714) 765·5169
r:IIX {714) 765·5123
VJ\','\'l.;m~hcirn .net

22

 Mr. Peter Bibring
August 11,2014
Page 2
technologies to detect radio signals emitted from wireless cellular telephones t!·om
January 1, 2008 through present;"
9.
"Unsealed warrants or court orders reflecting the use of StingRay device
or other cell site simulator devices or technologies to detect radio signals emitted
tl·om wireless cellular telephones t!·om January I, 2008 through present;"
10.
"The number of times each year that data gathered through use of the
StingRay or other cell site simulator devices or technologies was used in the
investigation of any crime, including the role, if any, it played in identifying, arresting
and/or convicting suspects f1·om January I, 2008 through present;"
II.
"Which departments, units, assignments, individuals currently have access
to the data gathered by cell site simulator dcviecs or technologies to detect radio
signals emitted tl'cnn wireless cellular telephones and for what purposes;" and
12.
"All records including, but not limited to, emails, notes, presentations,
manuals, proposals, policies, maps, computer tiles or other documents related to cell
site simulators owned, operated and/or used by the agency or its employees, not
responsive to one of the other requests in this letter."
Overall, your request docs not reasonably describe or identify the records sought to be
produced. Government Code § 6253(b ). In addition, the records you seek arc exempt t!·om
disclosure pursuant to the following provisions of the Public Records Act:
• The records arc subject to the Trade Secret Privilege (Evidence Code §1060 and
Government Code §6254(k));
• The records are subject to the OHicial Information Privilege (Evidence Code §§!040(b)
(2), 1041(a)(2));
• Documents reflecting police techniques or "security procedures" are expressly exempt
fl·mn disclosure pursuant to Government Code §6254(1); and
• The records arc subject to the public interest exemption provided by Government Code
§6255.
Should you have any questions, please contact the undersigned. Thank you for your kind
cooperation in this regard.
Very truly yours,
Michael R.W. Houston, City Attorncx_,

(:))~r~\~1t;rli'_(
. ()\\ \7-l /.)
\

By:

Deputy-City Attorney
cc:

J<.'nnifcr Hall, Ci\y Clerk
Linda Andal, City Clerk

104092

!3arlmru Nail, APD

23

' .... )

 EXHIBIT 

Via United States Postal Service Certified Mail
October 10, 2014
Anaheim Police Department
c/o Bryn M. Morley
Office of the City Attorney
200 S. Anaheim Blvd., #365
Anaheim, CA 92805
Re:

July 29, 2014 Public Records Act Request re: Cell Site Simulators, or “Stingrays”

To Whom It May Concern:
On July 29, 2014, we sent your agency a Public Records Act request for records related
to Cell Site Simulators. On August 11, 2014, your agency responded, stating in part that the
request did not reasonably describe or identify the records sought. Per the voicemail I left you
today, I write to ensure we can communicate to reasonably describe or identify the records
sought to be produced. Please do give me a call or send me a letter to the extent there is any
confusion about the records sought. Thank you.

Sincerely,

Jessica Price
Staff Attorney
(213) 977-5233

1313 WEST EIGHTH STREET

LOS ANGELES

CA

90017

24

t 213.977.9500

f 213.977.5299

ACLUSOCAL.ORG

 EXHIBIT 

City of Anaheim

OFFICE OF THE CITY ATTORNEY

October 14,2014
Ms. Jessica Price
Staff Attorney
ACLU of Southern California
1313 West 8th Street
Los Angeles, CA 90017
Re:

Sent Via First Class Mail and
Email Transmission to:
jprice@aclusocaL org

ACLU Public Records Act Request No. 07312014-3

Dear Ms. Price:
The City of Anaheim ("City") is in receipt of your recent correspondence
dated September 29, 2014 addressing the City's earlier response to the Public
Records Act Request from the ACLU dated July 29, 2014 fi·om Staff Attorney Peter
Bibring.
The City has determined that records, which the ACLU has requested
concerning "'cell site simulators,' also known as StingRays," that are in the City's
possession are exempt from disclosure pursuant to the following provisions of the
Public Records Act:
• The records are subject to the Trade Secret Privilege (Evidence Code § 1060
and Government Code §6254(k));
• The records are subject to the Official Information Privilege (Evidence Code
§§1040(b) (2), 1041(a)(2));
• Documents reflecting police techniques or "security procedures" are
expressly exempt from disclosure pursuant to Government Code §6254(f); and
• The records are subject to the public interest exemption provided by
Government Code §6255.
The City has not taken the position that it possesses no responsive records or
that documents are being withheld because they contain non-responsive material as
discussed in American Civil Liberties Uuion of Northern California v. Superior
Court (2011) 202 Cal.App.41h 55, 82. Rather, the City is denying access to its
records pursuant to exemptions enumerated by the Public Records Act. Fairley v.
Superior Court (1998) 66 Cal.App.41h 1414.
The Public Records Act does not require local agencies to create a "privilege
log" or list (i.e. a Vaughn Index as referenced in Vaughn v. Rosen 484 F .2d 820,
827 (D.C. Cir. 1973)) that identifies the specific records being withheld. Havnie v.
Superior Court (2001) 26 Cal.41h 1061. See State Board of Equalization v. Superior
200 S. Anaheim Blvd., Suite 356
Anaheim, California 92805
TEL (714) 765-5169
FAX (714) 765-5123
www.anaheim.net

25

 Ms. Jessica Price

October 14, 2014
Page 2
Court (1992) 10 Cal.App.4'h 1177, 1193 ("The Public Records Act does not, like the FOIA,
require the maintenance of an index of records available for public inspection and copying.")
Furthennore, "a list of documents withheld may also reveal information ordinarily deemed
exempt from disclosure." Havnie supra at I 075. The City's response only needs to identify the
legal grounds for nondisclosure, which the City has done above and in the previous response to
Mr. Bibring.
Should you have any questions, please contact the undersigned. Thank you for your kind
cooperation in this regard.
Very truly yours,

Sr. Assistant City Attorney
105451

26