San Bernardino County Sheriff's electronic surveillance use — already highest in state — continues to surge
Christopher Damien
The San Bernardino County Sheriff’s Department searched the digital property of people without their immediate knowledge at a rate that is 20 times that of the state average, between the beginning of 2016 and May 2018, according to information the department is required to report to the state. Since then, the department’s searches have only increased in frequency and number.
Data newly reported to the California Department of Justice show that in the first eight months of 2018, the sheriff’s department reported conducting electronic property searches without the property owner’s immediate knowledge 505 times -- more than double the 211 similar searches the department reported for all of 2017, and more than triple the 168 reported in all of 2016.
The department’s pace put them on track to quadruple the yearly number of electronic search warrants authorized to search property without the owner’s immediate knowledge for the previous two years.
The law permits agencies to delay notifying targets of their searches for three reasons. First, if notification threatened the effectiveness of an investigation. Second, if the warrant was needed in an emergency. Third, if the owner of the device could not be identified. But in all cases, the owner of the property needs to be notified no more than 90 days after the property was searched.
In addition to the outsized number of electronic property search warrants executed without the owner’s knowledge, The Desert Sun obtained new information about the department’s overall digital property searches that again demonstrate the opacity of the agency’s practices: Between Oct. 6, 2018 and Dec. 8, 2018, the department was granted 787 warrants to authorize searches of digital property.
The department did not include what kind of device was used to perform the searches, or what kind of devices were searched, for as many as 760 of the electronic property search warrants.
Miles Kowalski, legal counsel for the San Bernardino County Sheriff’s Department, said “throwaway phones” are often used by suspects in incidents investigated by the department. But the numbers reported by the department did not completely reinforce this conclusion.
The department reported that they seized 224 devices, like phones and laptops, during the same two-month period. Of the 224 devices, only four phones, Kowalski said, “had no subscriber information and will be reported to the DOJ” -- a small fraction of the surging numbers of electronic search warrants they’ve reported for 2018.
Of the 787 electronic property search warrants authorized, 29 were granted to use the cell site simulator, some of which Kowalski said will also be reported because the owners of the targeted devices might not have been identified for notification -- again a small fraction of 2018’s numbers.
The cell site simulator technology has attracted the attention of privacy activists concerned that the device invasively gathers information from the phones of bystanders.
Electronic Frontier Foundation, a technology policy advocacy group, filed a lawsuit following a dispute about the department’s refusal to release records about their use of the cell site simulator, a hearing is scheduled in March.
Kowalski, the department’s lawyer, said “a large portion of the ESWs were for searching social media accounts to assist with criminal investigations,” but did not say exactly how many.
Even with the department’s surge of electronic search warrants reported in 2018 still not fully accounted for, Kowalski said the department is acting with the best interest of the public in mind.
“The San Bernardino County Sheriff’s Department takes privacy very seriously,” Kowalski wrote.
The department is committed to being transparent about their investigative practices to the residents of the county they serve, Kowalski said. But he acknowledged that in some cases secrecy must be maintained to protect the integrity of an investigation and the safety of the officers involved.
“Often times this requires a delicate balancing of the public’s right to know against the privacy rights of victims, witnesses and suspects, and the possibility of endangering ongoing investigations,” Kowalski said.
John McMahon, the sheriff of San Bernardino County, has not kept his department’s substantial use of surveillance technologies a secret, though he doesn’t like the word surveillance.
More:Advocacy group sues San Bernardino sheriff over refusal to release surveillance records
In July 2018, McMahon wrote a letter to California state Senator Jerry Hill, D-San Francisco, in opposition to a bill that the senator had authored, which would have required law enforcement agencies to publicly establish regulations regarding the use of digital surveillance technologies.
In the letter, McMahon explained that his department values transparency and tells the public about the tools they use whenever given the chance. He was being transparent already, he said, the bill was unnecessary. But his opposition didn’t stop there.
McMahon disagreed with the very idea of singling out surveillance technologies as different from other tools that the department uses in its operations.
“These technologies (and the others in the bill) are not in and of themselves surveillance technologies,” McMahon wrote. “If the intent of the law is to regulate the government use of illegal wide-spread surveillance, then the law should clarify the activity that it is trying to regulate, not the technology that could, but isn't, being used for surveillance.”