SAN FRANCISCO—The Supreme Court of California should review a lower court’s decision that allows police to indefinitely keep court records about widespread electronic surveillance secret from the public, the Electronic Frontier Foundation (EFF) argued in a brief filed Tuesday.

EFF, along with co-counsel from the Law Office of Michael T. Risher, asked the state’s highest court to overturn a September ruling by the California Court of Appeal’s Fourth Appellate District which let San Bernardino County authorities keep a large number of affidavits seeking authority to conduct cellphone tracking sealed in their entirety indefinitely.

“Keeping search warrant affidavits sealed indefinitely makes it impossible for the public to understand basic facts about how police are using invasive technologies that sweep up innocent people’s personal data,” said EFF Senior Staff Attorney Aaron Mackey. ”California laws, the state’s Constitution, and the First Amendment do not let authorities keep every word in these records under seal, in their entirety, forever.”

The petition to the California Supreme Court argued that the lower court’s ruling imperils access to all search warrant affidavits: “If this decision is allowed to stand, the public could be unable to access court records reflecting law enforcement’s use of invasive surveillance technologies, even years later.

EFF has been working since 2018 to obtain search warrant filings in San Bernardino County Superior Court, including law enforcement requests to use cell-site simulators (CSSs). These devices mimic cell-phone towers to trick any nearby phones into connecting with them, so police can use this technology to gather information on people’s phones or to track people in real time. Between 2016 and 2018, San Bernardino County judges issued more warrants, per resident, for police to use CSS technology or collect people’s private data than any other county in California.

Whenever police use invasive surveillance tools like CSSs, they inevitably sweep up innocent people’s private data. Law enforcement agencies nationwide have a history of shielding this technology’s use from public scrutiny, including arguing here that the information must never become public even when the specific case that it was used in is long finished.

The search warrant affidavits filed with the court can show how law enforcement justified using CSSs, what types of crimes they were used to investigate, and what training and expertise officers had when deploying them. They can assist lawmakers in deciding whether the technologies are effective, worth the expense, or whether more public oversight is needed, and help the public understand things like why the San Bernardino court approved the use of CSSs so much more often than other California courts.

EFF first learned in 2018 that San Bernardino County law enforcement officials were disregarding the California Electronic Communications Privacy Act’s transparency measures by improperly sealing search warrant records indefinitely. So EFF petitioned the San Bernardino County Superior Court in 2019 to review and unseal 22 search warrants that appear to be sealed in violation of California’s penal code.

After EFF filed its 2019 petition, law enforcement agreed to unseal one search warrant in its entirety as well as parts of eight other search warrants EFF sought. But they refused to release the affidavits written by officers in support of those eight warrants, arguing that they must remain sealed in their entirety to protect investigations and the identities of confidential witnesses.

A trial court judge sided with the police in January 2021, ruling that the search warrant affidavits must remain sealed indefinitely; the state appellate court upheld that ruling in September 2022.

For the brief:

For more background on the case: