In a reversal, Charlotte-Mecklenburg Police Chief Rodney Monroe said Wednesday that the city won’t fight a petition seeking to unseal court records about his department’s secret surveillance of cellphones.
Monroe sent a letter to a judge that says after consulting with the FBI and reviewing the records, CMPD “has no objections to the unsealing of these documents at this time.”
The letter comes less than a week after The Charlotte Observer and its news partner, WBTV, filed a petition in Superior Court to allow public access to Mecklenburg County records dating to 2006.
It also follows an Observer report Sunday in which Superior Court Judges Richard Boner and Robert Bell both said they are willing to consider unsealing some orders. They said that transparency is a fundamental part of the American court system.
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The news organizations are seeking documents related to CMPD’s use of cellphone surveillance technology, known commonly as a StingRay.
The device mimics a cellphone tower and can provide officers with serial numbers, location and other information about nearby phones, laptop computers and tablets that connect to cellular networks.
Privacy groups and legal experts say the portable equipment may violate the Constitution’s prohibition against unreasonable search and seizure. It allows police to collect cellphone data from criminal suspects and innocent people alike.
CMPD must obtain a court order to use the technology during an investigation, but judges seal the records, meaning the public cannot learn when officers use the device or examine judicial oversight.
“The notion of secret court orders routinely and permanently sealed from public view runs counter to several hundred years of our jurisprudence,” said attorney Jon Buchan, who filed the petition on behalf of the Observer and WBTV. “I think Chief Monroe now understands that it’s unlikely our judges would permit that to continue.”
Civil liberties advocates said Monroe’s letter is surprising. It is relatively rare for cities to even acknowledge they own a cell site simulator, they said.
The American Civil Liberties Union called for CMPD, Mecklenburg District Attorney Andrew Murray and the local courts to establish new rules that allow public access to the records.
“It is welcome news that the police department agrees that there is no good basis for keeping these documents secret any longer,” said Nathan Freed Wessler, an attorney for the group. “Going forward, it will be important for the police, prosecutors and the court to develop a procedure that avoids indefinite sealing of such records. Judicial records like these should be unsealed as soon as possible after an investigation becomes inactive, when the reason for the initial sealing has dissipated.”
Change of heart?
Last week, Charlotte City Manager Ron Carlee said much information about cellphone tracking must stay secret because the city signed a nondisclosure agreement with the FBI to purchase the equipment.
The FBI has argued that documents about cell site simulators are exempt from open record laws because they are tied to national security. Releasing details would let criminals learn to escape detection, the FBI has said.
In his letter to Boner, Monroe noted that initially, the city sought to have documents connected to its surveillance use sealed. Now, Monroe said, the city will develop “a streamlined process to provide for greater access to these applications once the target of the application and order has been apprehended and arrested.”
CMPD did not respond to a request for an interview with Monroe.
Department spokesman Rob Tufano released a statement Wednesday: “We hope that our request for unsealing this series of applications and court orders will reassure the public that we are using cellphone technology in a thoughtful manner that balances the rights of citizens with those of the suspects in these cases.”
The equipment helps officers investigate serious crimes such as homicides and kidnappings more efficiently, Tufano said.
“Technology has proven to be one of the most effective crime fighting tools available to police and it can give police the ‘edge’ that they need to bring investigations to a successful conclusion,” he said.
City council member Claire Fallon has questioned whether the cellphone tracking is an invasion of privacy. Fallon said she met with a city attorney this week to discuss her concerns.
She would not disclose details, but said the meeting reassured her that the CMPD had taken a “reasonable” approach to using the surveillance.
“I am a little more comfortable, but I have still have questions,” Fallon said. “Nobody wants to be spied on. If they only use it for murders and kidnappings, it doesn’t bother me.”