Alameda County District Attorney Nancy O’Malley
struggled this week with how one controversial
surveillance device actually works.

ALCO BOARD OF SUPERVISORS | Alameda County District Attorney Nancy O’Malley denied surveillance equipment that mimics a cell tower to surreptitiously monitor bulk cellphone data does any of that before later conceding ignorance about its capabilities.

O’Malley made the statement in reference to the device known as a Stingray this week during questioning by the Alameda County Board of Supervisors. The Sheriff’s Department is asking the board to approve $113,000 for an upgrade to the Stingray equipment allowing it to function with 4G cell phone networks.

Alameda County Supervisor Nate Miley said he had previously met with privacy advocates who registered opposition to the upgrade. This led Miley to ask O’Malley if law enforcement can also gain access to other cell phones?

The Stingray can be used by police to monitor cell 
phones by mimicking a cell tower.Opponents say
it captures bulk phone data from innocent people.

“No, you cannot not,” O’Malley answered.

Brian Hofer, an Oakland resident and an author of two digital surveillance policies in Oakland, was exasperated by O’Malley’s testimony. “I’m unbelievably alarmed by the responses to your questions, Supervisor Miley. that I just heard,” said Hofer. “They were were flat-out factually incorrect. He added, unequivocally, the Stingray equipment can intercept communications from third-party cell phones and knowledge of this capability is common.

Later, O’Malley was called back for questioning and described a meeting with a representative from Harris Corporation, the manufacturer of the hardware. “He showed me what the equipment will do what we’re requesting,” said O’Malley. “So, I don’t know if it has the capacity to do more but I’m telling you that the way we’re using it is what I told you and not any more than that.”

O’Malley added any use of the Stingray would only occur in all cases after a warrant is issued. A policy for its use has been drafted, said O’Malley, but not vetted by the Board of Supervisors or available for the public consumption.

The board made no decision on the allocation until early December, at the earliest, even though the possibility exists the federal grant will not be available after the end of this year. In this event, Alameda County Supervisor Wilma Chan suggested the county coffers could be used, instead.

LISTEN HERE for audio and commentary on DA Nancy O’Malley’s comments to the Alameda County Board of Supervisors on the East Bay Citizen Show podcast.