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Chicago cops lose bid to toss lawsuit over secret cell-phone tracking

A Cook County judge on Monday denied the Chicago Police Department’s request to dismiss a lawsuit seeking records that could show whether the police have used secret cellular tracking systems to spy on political protesters as well as criminals.

Last year, the department responded to a Freedom of Information lawsuit by disclosing the city spent more than $340,000 between 2005 and 2010 on cell-site simulators, as well as software upgrades and training. The department also provided records showing an outside law firm billed the city more than $120,000 to battle the lawsuit. But the city balked at providing records describing how they’re used.

On Monday, Judge Kathleen Kennedy said she didn’t accept most of the police department’s arguments asking her to withhold additional records, including search warrants for their use, documents that show when, where, how and why they have been used, policies governing their use, records discussing their constitutionality, and records about how the data is stored.

Kennedy ordered the police department to turn over those documents by Jan. 25. She will review the them in her chambers to decide whether they should be withheld. The next hearing in the case is Feb. 26.

“We are reviewing the judge’s decision and are determining our next steps,” said Bill McCaffrey, a spokesman for the city’s Law Department.

Cops can use the technology, originally developed for the military, to obtain information from cellphones in real time, including the location of the person using the cell phone. Law-enforcement agencies in at least 15 states have cell-site simulators, and many of them have been fighting lawsuits that seek to learn how they are used.

Freddy Martinez, a 28-year-old Chicago-area resident who works in the software industry, brought the Freedom of Information lawsuit against the Chicago Police Department. He is represented by Matthew Topic, an attorney with the firm Loevy & Loevy, which is well known for successfully suing the city for alleged police misconduct.

When the police department goes to court to seek permission to use cell-site simulators, which are sold under brand names like StingRay and Triggerfish by Florida-based Harris Corp., those applications ask judges to approve the use of much lower-level technology than StingRays and similar devices offer, Topic said.

“We’ve seen the department trying to shoehorn the use of StingRays through a different kind of court process that doesn’t apply the same level of rigor,” he said.

In her ruling, Kennedy addressed that issue.

She denied Martinez’s request for court orders that authorize “pen registers” or “trap-and-trace devices.” Pen registers can record numbers dialed by a phone, while trap-and-trace devices can record incoming numbers, Kennedy said. State law prohibits release of those court orders, she said.

But Martinez also sought court orders for “IMSI Catchers,” which can capture a cell phone’s “unique serial number, its location, and the content of calls, text messages and webpages visited,” the judge wrote.

Those devices, which include StingRays, have broader capabilities, Kennedy said.

“To the extent that [court] orders address technology other than pen registers and trap-and-trace devices, they are not exempt” from being disclosed, she ruled in a victory for Martinez.

The Chicago Police Department had argued that information about the cell-phone trackers is protected under federal laws and that Harris Corp. requires the department to keep details about the devices under wraps.

The Cook County State’s Attorney’s office said revealing documents about the use of the devices in terrorist or drug cases could compromise investigations. And the FBI provided the city with a statement saying disclosure of the devices could help criminals create defensive technology.

Police agencies in other states have been forced to reveal in court that StingRays and similar devices have been used to locate suspects, fugitives and victims in criminal investigations.

In Tallahassee, Florida, prosecutors decided to offer a robber a plea bargain on a reduced charge to avoid complying with a judge’s order to show a StingRay to his attorneys.

Police had used the device to track the man to a house where he was arrested in 2013. In a response to an ACLU lawsuit, the Tallahassee police said they used the technology in about 250 investigations from 2007 to 2014.

Surveillance using devices like StingRays has a chilling effect on free speech and dissent, Topic said. People are less likely to speak out against government corruption and wrongdoing when they fear the government is monitoring their location, he said.

One fear is that police have been using the devices to monitor protesters at events such as the NATO Summit. Demonstrators were suspicious that the batteries in their cellphones seemed to become quickly depleted during the protests — something caused by cell-tower simulators.

Last year, a Chicago Police source with knowledge of the department’s NATO operations told the Chicago Sun-Times that cell-phone trackers were not used to track demonstrators.

Topic said he doesn’t have any proof that the Chicago Police Department is using StingRays to spy on political protesters. But he did point to evidence of that happening in other states. He noted that police in Miami-Dade, Florida, made an emergency purchase of a StingRay on Nov. 12, 2003, to monitor protests at the Free Trade of the Americas Conference.

“When you consider the power that this technology has, it certainly would suggest that there’s a possibility that the CPD is using equipment to build a database of protesters, and otherwise monitor protesters in a way that raises really serious First and Fourth amendment concerns,” he said.

Last year, the Sun-Times reported that Chicago police have opened six investigations into protest groups since 2009. Most involved the use of undercover officers to watch or infiltrate the groups.