Tech Company Gave Two New Orleans-Area Sheriff’s Offices Access to Track Cell Phones Without Warrants
Neither agency had written policies on how to capture or store the location data without violating privacy rights.
Two New Orleans-area sheriff’s offices contracted with a company that gave them access to location data of any cell phone the agencies sought to track.
From 2015 to mid-2018, the Jefferson Parish sheriff’s office—which has jurisdiction over Louisiana’s second-most populous parish and also runs its jail—captured more than 5,800 coordinates showing a cell phone’s location, said agency spokesperson Captain Jason Rivarde. He said the technology was used as part of criminal investigations.
Rivarde said the thousands of “pings” often captured location data of the same cell phone number dozens of times per day before the technology was disabled in mid-2018 by Securus Technologies, one of the nation’s leading providers of phone and messaging services for correctional facilities.
The contracts with Securus and the Jefferson and Orleans Parish sheriff’s offices stated that the onus to collect the data legally fell on law enforcement. Despite language in the contracts that Securus makes “no representation or warranty as to the legality” of the technology’s use, neither law enforcement agency had written policies regarding collecting, managing, or storing cell phone location data without violating people’s privacy rights.
“With such powerful technology comes substantial government responsibility to build out safeguards, and it sounds like that didn’t happen here,” said Katie Schwartzmann, an attorney with the American Civil Liberties Union’s Louisiana office.
The Orleans Parish sheriff’s office, whose primary function is running the city’s jail and providing courthouse security, had access to the technology from April to May of 2018, before Securus disabled it. Blake Arcuri, an attorney for the sheriff’s office, said the agency did not get a chance to use the technology before it was disabled and had no written policies about it. The sheriff’s office said its contract with Securus was amended in March 2018 to add the location data service because the agency “learned of the new feature and sought its inclusion in any subsequent agreement,” but it offered no further explanation.
The Jefferson Parish sheriff’s office retrieved cell phone location data through the Securus because it provided a shortcut to the data instead of going through the service providers of cell phone users, Rivarde said.
The contracts between Securus and the Orleans and Jefferson Parish sheriff’s offices show that the company gave its clients access to location data for cell phones that made or received calls from their correctional facilities. The contracts also offered to provide location data for cell phones regardless of whether the phone connected with a call at their jails. The agency simply had to provide Securus with a cell phone number, and Securus would provide that phone’s location data. Rivarde said the Jefferson Parish sheriff’s office used the service for criminal investigations, including homicides, robbery, drug or missing persons cases, and tracking fugitives.
“To my knowledge,” he said, the agency did not use use Securus to track locations of calls coming in and out of the jail.
Rivarde said the Jefferson Parish sheriff’s office obtained court orders for the location data that the agency retrieved through Securus. But the practice of seeking court orders for the data is not mentioned in the agency’s contract with Securus. And Rivarde said they had no written policies requiring court orders to use the technology.
The Appeal requested samples of five such court orders from the Jefferson Parish sheriff’s office under Louisiana’s Public Records Act. On Oct. 22, a commander with its Central Records and Warrants Division wrote in an email to The Appeal that “the public records request for samples of court orders, are not readily accessible without more information.”
The Orleans Parish sheriff’s office did not respond to a public records request seeking any written notification from Securus that its cell phone location technology was disabled. The Jefferson Parish sheriff’s office provided a letter to The Appeal from Securus dated May 11, 2018 stating that the company could no longer provide the location-based services because “some wireless carriers” were no longer allowing it.
In an email statement to The Appeal, Securus said it stopped offering the location-based service in May 2018 to “all of our law enforcement customers.” Securus did not respond to a question about the company’s rationale for discontinuing the technology. The change, however, came just weeks before the Supreme Court ruled in Carpenter v. United States that cell phone location records are protected by the Fourth Amendment to the Constitution, and that a warrant establishing probable cause is required to obtain them.
ACLU attorney Nathan Freed Wessler argued the case and told The Appeal that the decision “powerfully recognized why we need robust privacy protections for our location data, because of all the really private and sensitive parts of our lives it can reveal.”
Rivarde said that from 2015 to 2018, the Jefferson Parish sheriff’s office obtained approximately 500 court orders for cell phone location data through Securus. In some instances, he said, deputies got multiple court orders for a single criminal case. Rivarde said each court order was obtained through a conversation with a magistrate commissioner and not via a written affidavit that’s typically required for a warrant. The orders authorized unlimited “pings” on a cell phone over seven days. Warrants require a written statement establishing probable cause that a crime was committed, while court orders establish a lower standard of “reasonable suspicion,” Chief Justice John Roberts noted in the Carpenter ruling.
Schwartzmann said the fact that the technology was used to track individuals “hundreds of times” raises “serious constitutional concerns.”
Since Securus disabled the technology in 2018, Rivarde said, deputies have begun applying for and obtaining warrants for cell phone location data from service providers.
In April and May of 2018, an automated recording warned people who called incarcerated people at the Orleans Justice Center, that “the call is subject to recording and monitoring and your location information may be collected and used by corrections and law enforcement personnel.” Arcuri said the technology was never used, but the disclaimer was required when the program was “available for use” by the sheriff’s office.
Such a recorded disclaimer may not be considered proper consent, as phones are often the only way family members can communicate with a loved one in jail, Schwartzmann said.
Law enforcement agencies with access to Securus’s cell phone location data technology “absolutely” should have had written policies to prevent abuse, said Schwartzmann.
“The office needs policies to stop an officer from using this technology to track the whereabouts of his ex-wife, a politician from tracking the whereabouts of their opponents, or officers from surveilling people they just don’t like,” she added.
Storage of the location data once it’s collected should have been addressed in written policies, Schwartzmann said.
The Jefferson Parish sheriff’s office also had no written policies dictating where or how long the cell phone location data obtained through Securus should be stored or who had access to it, Rivarde said. The information was handled “like any other investigative measure” in criminal cases, he said. Some of the data remains logged as evidence, while “others remain as part of electronic files maintained by our records division.”
“The public needs proof” that the data is securely stored with limitations on access, said Simone Levine, executive director of the criminal legal reform organization Court Watch NOLA.
In 2018, Court Watch NOLA raised concerns about the Orleans Parish sheriff’s office’s practice of using Securus technology to record calls between incarcerated people and their attorneys. The organization found that the Orleans Parish district attorney’s office listened to attorney-client calls and used information gathered in such conversations to prosecute people, which Levine said violated attorney-client privilege.
A spokesperson for the Orleans Parish district attorney’s office declined to comment to The Appeal but referred a reporter to 2005 case law, U.S. v. Lentz, which states that a disclaimer warning prisoners that a call with their attorney is subject to monitoring forfeits privilege. In 2018, the office told The Times-Picayune the calls between incarcerated people and their attorneys were not privileged and noted the recorded warning.
The fact that jailers, and potentially investigators and prosecutors, would have had access to cell phone locations without a warrant, Levine said, has “all kinds of implications” that could infringe on people’s rights.
Securus’s statement to The Appeal referred to the location data service as a “lifesaving tool,” that their law enforcement clients used “to find missing children, locate individuals suffering from dementia, and apprehend violent offenders.” But the company’s contracts with law enforcement agencies didn’t provide this rationale for tracking cell phones, and Securus didn’t require clients to provide a reason to collect the location data.