Craig Benson Futterman
Matthew V. Topic
The Chicago Police Department told a judge Monday that it shouldn’t have to divulge details about its use of cellphone-spying technology.
It’s seeking to dismiss a lawsuit filed over the department’s refusal to comply with a Freedom of Information Act request over devices known as “stingrays.”
Cook County Circuit Judge Kathleen G. Kennedy will decide Jan. 11 whether to dismiss the lawsuit filed by journalist Freddy Martinez or allow the litigation to proceed.
Martinez filed his complaint in 2014 seeking records on the department’s use of stingrays and the data they gather as well as any records discussing their constitutionality.
Stingrays — formally known as international mobile subscriber identity catchers — mimic cell towers and can wirelessly collect identification numbers, call logs and locations of cellphones in a given area that connect to the stingray’s signal.
The technology can be upgraded to collect more data from the phone, including eavesdropping on calls, according to Matthew V. Topic, a partner at Loevy & Loevy who is representing Martinez.
It’s unclear, however, what exactly the CPD is using it for, Topic added.
“Depending on what equipment and what software they have running on it, there is the possibility to use it to basically eavesdrop,” Topic said in an interview after Monday’s hearing at the Daley Center. “We don’t know when that’s being done, but that’s certainly something you would need a wiretap for. It doesn’t mean they’re not doing it illegally — we don’t know.”
During the 90-minute hearing, the CPD, represented by Jeffrey D. Perconte, a partner with Drinker, Biddle & Reath LLP, pointed to a list of state and federal laws that offer exemption from complying with Martinez’s FOIA request.
For instance, the CPD specifically cited FOIA exemptions for specialized investigative techniques and trade secrets and commercial information.
“If this isn’t a specialized investigative technique, then what is?” Perconte asked, noting that the CPD also signed a nondisclosure agreement with the FBI concerning the use of stingray technology.
Topic said the CPD cannot use the nondisclosure agreement as a justification for not releasing its stingray records.
Perconte maintained, however, that the agreement “informs” the court about how the use of stingrays is a specialized investigative tool.
The CPD also points to an FBI agent’s affidavit that defines stingrays as a defense article pursuant to the International Traffic in Arms Regulations, which restricts the items U.S. entities can export given their military application.
Martinez plans to publish all of the stingray-related materials if he is successful and receives the information from the CPD, including the technical manuals. This would qualify as an export, and thus disclosing these materials would be exempt under international regulations, the department argued.
But Martinez’s counsel, in filings with the court, disputed the notion that stingrays are defense articles under international regulations and noted that CPD’s lack of procedures surrounding these manuals “are completely inconsistent with the proposition that the manuals are subject to arms export regulations.”
Topic made a similar point in Kennedy’s courtroom when refuting the CPD claim that stingray materials are trade secrets, saying there is no procedure in place that truly treats these materials as such.
The language in FOIA states that the government body denying a request has the burden to establish that its denial complies with the law and to prove that the records in question are “exempt by clear and convincing evidence.”
But Topic argued that many of the facts in the case are in dispute, and that the court cannot simply dismiss the case while they’re unresolved.
“We have an affidavit from the FBI that says even releasing basic information would jeopardize the ability to use the technology for future investigations. We have submitted the affidavit of a federal magistrate judge that says that isn’t the case,” Topic said after the hearing.
“There’s a lot of fact issues about what is secret, what isn’t secret. … If there’s even a fact dispute on that issue, the case needs to go further.”
Martinez is also being represented by Craig Benson Futterman, a clinical professor at the University of Chicago Law School's Edwin F. Mandel Legal Aid Clinic.
Monday’s hearing came just days after both Topic and Futterman scored another FOIA victory for a client against the CPD over the release of a dashboard-camera video that allegedly depicts officer Jason Van Dyke shooting 17-year-old Laquan McDonald 16 times. Cook County Associate Judge Franklin U. Valderrama gave the city a deadline of Wednesday to release the footage — a deadline the city said it will meet.
In addition to Perconte, CPD is also represented by Daniel J. Collins and Levi J. Giovanetto, both of Drinker, Biddle & Reath.
The case is Freddy Martinez v. Chicago Police Department, 14 CH 15338.