Wednesday, April 16, 2014

LPR issue coming to head at Legislature

A license plate reader (LPR) that many Minnesota law enforcement agencies have and the data it collects can know where you were five days, five weeks, five months, even 5 years ago.  The data the LPR collects and disseminates can be used to get an individuals daily routine down pat.  Just review the Star Tribune articles about former Mayor R.T. Rybak and reporter Eric Roper.

The emerging technology, which can read 1,800 license plates per minute from a device mounted on a dashboard, roof, or fixed on a bridge as is being done in past or now on the Minneapolis Broadway Bridge is a tech-tool for crime fighting.

Usage of LPR's raises issues of civil rights, civil liberties, privacy, and accountability.  This debate has played out on the floors of the Minnesota Legislature in debate, but is coming to a Conference Committee soon.  Both legislative bodies, the House and the Senate, have passed their versions of the bill that's attempting to regulate the use of this vacuum cleaner of data.

The House position by a strong floor vote is very clear, any database of data that is used to keep tabs on innocent people's movements for any time is a no, no.  On the other hand, the Senate bill has a 90 day retention period for LPR scans on innocent people, but can be easily undermined by police stating we may need it for a criminal investigation.  The discretion in the bill allows for an agency to keep all scans forever.

Minnesota law enforcement believes tracking innocent peoples license plate data and whereabouts and storing the data is important to fight crime.  These databases whether in the local police department or stored in a central repository can reconstruct an individuals movements and creates an environment after the fact surveillance of innocent people without a warrant.

In the past several years, law enforcement agencies in Minnesota collected millions of license plate records through LPR's.  For example, in Minneapolis in 2011 of the 3,750,877 license plate data collected only 0.68 percent (25,543) were hits, meaning associated with a a possible crime, or whatever the local agency is using as a standard (persons of interest, stolen cars, stolen plates, scofflaws, ie).  Many of the hits are associated with such offenses as cancelled insurance or revoked driver's license.  In 2013, I went to the Bloomington Police Department and Minneapolis Police Department and per data requests got samples of time periods of scans and hits which included tens of thousands of scans.  The same pattern continued.  The percentage for hits was nearly half a percent.  St Paul Police in 2012 had 2,549,777 LPR scans with 1,104 hits.

For millions of license plate scans in Minnesota, very few are associated with serious crimes including stolen vehicles for which the original purpose of LPR's were supposed to be used for. The rest of the hits are for non-violent violations.

Key issue of the LPR debate at the Legislature:  The 99 percent of people scanned by Minnesota's LPR cameras are innocent and law-abiding Minnesotans. What should the restrictions be and how long should law enforcement be able to retain scans that are not hits and collected on innocent people?

There's no laws in place to deal with this new technology.  Law enforcement argues there is no right to privacy and that there should not be too much regulation. Law enforcement officials stated in testimony that Minnesotans do not have an expectation of privacy of where their car goes, what can be seen in public is public.

But what's different is that records collected and disseminated about the locations of where a vehicle has been spotted creates privacy interests to when law enforcement uses such tools for surveillance purposes and do collection of movements of law abiding and innocent people.  It has been documented that license plate readers have been used to monitor mosques, political rallies in Virginia, and recently an air show in Florida.  In conversations with Minnesota law enforcement officials I have not been told that license plate readers will NOT be used to monitor and do surveillance of public events. 

For anyone that has seen the first Godfather movie, they remember the scene of FBI agents jotting down license plate numbers of the guests and the celebrants who are at the Corleone compound.  Should this happen in the modern day at public events, political rallies, or at the Minnesota State Fair entrances with the use of LPR's?

Will hundreds of thousands of Minnesotans vehicle license plates (individuals) be recorded, stamped with location and time, and disseminated to various local, state, and federal law enforcement and agencies and be retained indefinitely?

There are Homeland Security federal grants and state funded monies through the Minnesota Department of Commerce to purchase LPR's.  Many law enforcement agencies are waiting to decide whether or not to get LPR's until the Legislature decides on the proposed bills.  Should we have a statewide network of license plate readers, a mass surveillance network?

Let your legislators know what you think.  If you don't who will.

Below is a link of posts I have done in the past on license plate readers.

Monday, April 7, 2014

BCA still keeps quiet about cell tracking technology----admit have Stingray

Since September of 2013, I have been trying to get access to public data from both Hennepin County Sheriff's office and the Bureau of Criminal Apprehension (BCA-state FBI) on Kingfish and Stingray (cellular exploitation devices).  These devices particularly by the BCA have been bought in secret without the Legislature knowing about it.  $600,000 plus of state general funds have been used to buy the cellular devices.

In previous posts I have done and in the media there has been discussion of 4th Amendment privacy intrusions by the use of this kind of equipment.  Currently, these machines are being used without a search warrant in Minnesota.  There is legislation now pending before the Legislature that will address this issue among others how government get access to your location data.  Location data is information that third parties (Verizon, etc) collect on you as you use and carry your smart/cell phone in your pocket.

The letter below is where the BCA finally gives the public knowledge/confirmation that they have the Kingfish and Stingray.  Also where they acknowledge that they have a contract with Harris Corporation.  I still have not gotten the contract between the BCA and the Harris Corporation.

The letter below I received from the BCA in response to my re-request for the Kingfish/Stingray contract, and to review the inactive criminal investigations in which the Kingfish/Stingray was used.  The letter below was dated February 14, 2014.  Tomorrow I will be inspecting and reviewing the inactive criminal investigations.  I will let you know what I get.

"Mr. Neumeister,

We are writing in response to your follow-up data request regarding the Minnesota Bureau of Criminal Apprehension’s (BCA) cellular exploitation equipment.

In this follow-up request you asked for the following:

  1. All inactive criminal investigations in which the equipment has been utilized
  2. The contract for the equipment
  3. The number of times the equipment was used by the BCA.

You noted in a follow-up email on February 11, 2014 that you would like these requests treated as separate requests for each of your questions given your understanding that gathering the data related to the inactive cases will take the BCA some time to compile. 

So, I will address the second point in your request regarding the contract.  As we have previously noted, the contract with the company was not released per your previous request pursuant to our letter dated October 3, 2013.  In that letter, we explained that the data is considered both deliberative process data under Minn. Stat. §13.82, Subd. 25 as disclosure would reveal information regarding investigative techniques that would compromise ongoing and future criminal investigations.  In addition, we previously noted that the data was also trade secret information pursuant to Minn. Stat. §13.37, Subd. 1(b). We continue to classify this contract under these two statutes and the contract cannot be released as such.

However, after further consultation and discussion since your original request, we have released information related to this equipment and acknowledge that the equipment owned by the BCA is (1) Stingray II and (1) Kingfish which are used as cellular exploitation devices.  These devices are manufactured by Harris Corporation.

We continue to work on the other portions of your request and will be in contact when progress has been made.  Please understand the data you are requesting are part of voluminous case files that will require full review and redaction prior to your inspection.

I have also attached a copy of the letter that was sent to our legislature for your review of some other information related to this equipment. 


Drew Evans | Assistant Superintendent
MN Bureau of Criminal Apprehension
1430 Maryland Ave. E
St. Paul, MN 55106"

Thursday, March 20, 2014

Why mugshot bill at Legislature is not good policy or a bad bill

Today there was a hearing before the Minnesota House Public Safety Finance and Policy Committee on House File 1940 which would put barriers in front of public access to mugshots.  I did a post on this bill several weeks ago. 
This is the mugshot bill heard today with an amendment.  This is testimony I ran across.  Some hard points and devastating arguments against the bill and I wanted to share with you.


March 20, 2014

Thank you for the opportunity to testify on this bill.  This bill raises several important issues - most of which are not immediately apparent, so allow me to address them at some length. 

1)  First, we recognize that this bill is an attempt to address a legitimate problem.  However, how one chooses to defines that problem goes a long ways toward describing the appropriate solution.  If we characterize this problem as one of mug shot sites inaccurately labeling people who have been arrested, as convicted persons, there are already remedies in law for that sort of behavior.  An aggrieved person could bring a defamation lawsuit today to address just this matter, without the need for additional legislation.

2)  If we define the problem as one of having mug shot websites “profiteer” by charging a fee to remove images, then there is a separate solution available.  Other states, including New Jersey, have passed legislation making such conduct illegal.  That is perhaps the most efficient remedy to this situation.

3)  I would note that this second problem is remedied by Section 2, subdivision 3c of this bill - one single sentence of text.  While I commend Representative Norton for trying to address the underlying issue, the bill as written - and even as amended - contains many additional provisions that would cause serious, if unintended, consequences for data policy in this state.

4)  The first problem is that the bill would treat persons requesting mug shot data differently than other public requesters.  It would apply certain requirements to those requesters only - requirements that I’ll speak about in more detail in a moment.

When the Data Practices Act was conceived, it was done so in the context of securing access to government data for all Minnesotans - that is, its provisions applied equally to all users.  By starting down the path of requiring certain users to adhere to special parameters, we violate the egalitarian spirit that infused that original legislation.  Let us not have any assumptions that the exception created by this bill would only remain in this one section of statute -- others will come seeking its use, and will make “swiss cheese” of the rest of the statute by carving out special use exemptions.

The same is true of securing special privileges for particular requesters, as the amended language does.  While we respect the role of the press and seek their benefit, there is a larger proposition at work here.  John Finnegan - the architect of the Data Practices Act, and a newsman himself - was adamant that the Act not secure special rights for the media, but that its provisions should adhere to the public as a whole.  And particularly today, when the boundaries and definitions of the institutional media are in such flux, we should be very wary of defining who constitutes the media, and who does not.

5)  In regard to the parameters that the bill sets out for requesters, the bill would do these things:  It would require requesters to submit their name to the law enforcement entity that holds the data; it would also require them to submit a statement about where the data they obtain will be used, and what they intend to do with it.   This would be a practice at odds with the entire history of the Data Practices Act, which has never before sought to have any scrutiny over how requesters use public data.

That said of course, the Act does envision plenty of legislative control over data, but that control has rested with the classification of data -- whether data should be public or not public.  Once that is determination has been made, the government has traditionally had no more say over the use of data, unless a particular use violates a criminal statute (criminal defamation, for instance).  This bill would change that practice, and would begin a process of tipping the control over government data back toward the government, and away from the citizenry, by requiring citizens to register their intended uses of public data with the state.

6)  The biggest functional problem raised by this bill is not only that it would require users to file statements of use about the data they receive, but it would institute monetary damages for not filing those statements.  In certain contexts, this kind of activity walks very close to the line of what is called “prior restraint” in First Amendment law.  If enacted, the statute would require that someone who receives a booking photograph from another person would then need to fill out a statement of use and file it with a law enforcement agency - an arm of the government.  If they do not do this, then they become exposed to monetary damages.  Although a private party (the person in the photo) would be the entity seeking those damages, that mere fact that one has to file a statement with the government before transferring or publishing a photograph raises significant First Amendment issues, and the statute would likely be invalidated by the courts.

In short, Representative Norton is attempting to address real issues here, but we would strongly suggest that the bill be re-worked to avoid collateral consequences that will cause real and significant damage to data policy in Minnesota if adopted.  There is another way to do this, and I’d be happy to take any questions on the topic.

Sunday, March 9, 2014

Search warrants? We don't need no stinkin' search warrants

Since last summer there has been a lot of debate about the role of the NSA and it's surveillance techniques.  Even in Minnesota - pre-Snowden leaks - we've had our own privacy/surveillance issues: the spreading of license plate cameras and collection of the comings and goings of innocent Minnesotans, and the invasion of privacy by people who have access to the DVS databases. 
Besides that, Minnesota law enforcement agencies are seeking sensitive data from third parties such as Sprint, ATT, and Verizon that show the locations of their customers' cell/smart phones - both in real time, and historically.  They are doing this in a number of ways - including through the use of Kingfish/Stingray technology that I've written about before, as well as through administrative subpoenas.
Based on data requests, media coverage and testimony by law enforcement officials at a recent Minnesota House hearing, cops in Minnesota are making use of quarter century old laws written when there were no smart phones and GPS.
The grounds for requests for location data in Minnesota are based primarily on state laws that were written when there were no things such as the Kingfish/Stingray, or GPS location chips in cell/smart phones.  Under these laws, police only have to show, generally, that "location data" are "relevant" to a criminal investigation in the statutes.  The low standard is different than a Fourth Amendment based search warrant.  In data requests, it appears that law enforcement get location data in two ways primarily:  administrative subpoena or a court order.
Here is an example of subpoenas by the Minnesota Department of Public Safety.  Note the GPS location language.  This data is gotten by the Minnesota Department of Public Safety not by court order, search warrant, but by subpoena. 
In regards to the use of the Stingray/Kingfish, it seems that a low threshold court order is used - not a search warrant.
Over the last two years I have gotten information about this trend by using the data practices law.  This has been quite an experience in itself.  It took seven months to get access to court orders from the Hennepin County Sheriff.  It took several months to get four administrative subpoenas from the Minneapolis Police Department.  Some law enforcement agencies answered, others did not.
What the data requests showed is that Minnesota law enforcement is using advancements in technology to gain access to massive amounts of location data that intrudes on one's privacy and autonomy.  I have no problem with law enforcement using these tools if there is a real need.  But there has to be public discussion,  we have to know what law enforcement is doing, and there has to be robust, strong, privacy protections (search warrant) and accountability, public scrutiny, and transparency.
This issue is important. The data that the device in your pocket produces can reveal your associations and politics, or - as Justice Sotomayor stated - people do not "expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on."
I support a legislative fix to this issue by requiring a search warrant for location information.  Bills HF2288/SF2466 would add that fix.  I encourage you to support these bills, too.

Friday, February 21, 2014

Mug shot bills in Minn Legislature are overkill

Next week in the Minnesota House Civil Law Committee there will be a hearing to put restraints and barriers for public access to "mugshots" (public data).  Two bills have been introduced, one by Representative Norton, the other by Representative Myhra.  The purpose of both bills based on discussion with them is to keep people who have booking photos taken of them from being extorted by others who have online websites.

Based on my review of their bills I think both of them are "overkill."  Over the years there's been discussion of public access to the "booking photo" the respectable name for "mugshot."  It has always been decided they should be public for a number of reasons.  There was clarification of our law a decade or so ago.  But mugshots have always been public, generally for decades.

What's the "real" problem?  It's law enforcement agencies known as the Sheriff who runs the jails in Minnesota and puts the "booked" on their websites, then the entrepreneur does "copy, cut, and paste" the photos and now has their own rogues gallery.  Then the bad behavior begins, extortion.

So what's the easy solution, right away?  Do not allow the Sheriff's of Minnesota to put online the decent or indecent photos.  Who's responsible for the people that complained to their Representatives to generate these bills?  Minnesota's own law enforcement agencies, more than likely.

The mug shot is a document that brings transparency, accountability, and scrutiny to make sure there are no such things as secret arrests.  The public must have easy and unblocked access to this public data that documents a power which very few institutions have: to arrest, detain, and hold individuals. It is important that the public have no barriers to scrutinize fully the arrest process.

There should be no special privileges or double standard between the media interests and the public who should have equal access to the data.

There can be easy solutions that allow open access.  To start is not allow Minnesota law enforcement to put mugshots online, wholesale, remember the photos are still public, but just not online.  The proposed bills currently in the Legislature do not meet the standards that Minnesotans should strive for.  There are other alternatives.  One can be do nothing.

An example of  "copy, cut and paste" from two Minnesota counties, Dakota and Renville.  They come with names, but not interested to post.



Monday, February 3, 2014

Cellphone searches, is your 4th Amendment rights compromised?

At the center of discussion across the nation on rights of privacy is a little tool which more than 90 percent of Americans have: the cell phone, smart phone or variation of (personal device).

Why the crucial tool is a central point of discussion, other than a great way to keep track of you, is the enormous amount of data it can collect and holds on you and the ease government can get access to it. To give you perspective, just think of the personal data you have in your desk drawers and cabinets.  Some of it more than likely can be carried in your "personal device".  Also technology is increasing the amount of data you can store on your personal device.  Those files and data would have 4th Amendment protection and would be off limits if they were in your home.  Government would need a search warrant.  But do cops need a warrant if your records and data are in your "personal device"?

In a number of data requests I have done with law enforcement agencies it is not clear.  Some agencies require a search warrant.  Other law enforcement agencies may be doing a search of your smart phone (personal device) based on an exception to the 4th Amendment which the US Supreme Court has allowed.

The "exception" happens when you are arrested, the Supreme Court has held the person and the area squarely around that individual can be searched, that also includes containers in the person's control.

Hence, juxtaposition of technology and the challenge to our privacy and liberty rights......the "cell phone extraction device".  What a "cell phone extraction device" is easily explained in an article named:  "The gadgets police use to snarf cell phone data"

I asked in my data requests whether or not the law agencies had this new tech tool. These devices can be hooked to smartphones/iphones, ie and retrieve phone numbers, text messages, call history, photos, calendars, and documents, etc,.  Many of the urban law enforcement agencies have either one or up to three of these type of devices. These tech tools are inexpensive ranging from $5000 to $20,000.  One of the biggest providers of these type of devices is a company called Cellebrite.

So who is to make sure that our liberty and privacy rights are not being violated or compromised?  The Legislature, the Courts, or you.  I would suggest you.  Start asking your local Sheriff and Police Chief about their policies and whether or not they use a search warrant when they use this "extraction device" and when they use the "exception".

Saturday, February 1, 2014

Caucuses, Education Minn, the Gov and privacy

I went to my first precinct caucuses in 1972 under the umbrella of the "Peace Coalition" represented by a white dove.  I still remember the bumper sticker. The main purpose of the group was to stop our involvement in Vietnam.  Even though "vietnamization" was in swing with US ground troops down from their high in 1969, there was still our heavy use of air power and a fair amount of troops still in Southeast Asia.

Ever since then I have gone on to many state and district conventions.  I encourage "all" people to attend the caucuses of their choice.  It is fun and you can make a difference, particularly on those issue resolutions.

With encouragement by many elected officials and organizations for young people to attend the events next Tuesday night, I ran across an announcement that surprised me.

It was an announcement by Education Minnesota to motivate social studies teachers to encourage young people to attend the precinct caucuses of their choice.  There is nothing wrong with that.  Civic education and involvement should always be emboldened.  But what caught my attention was the involvement of Governor Mark Dayton in what is described as the, "Student Caucus Turnout Challenge".  The crux of the challenge is to have Governor Dayton attend the social studies class that has the most students attend the caucuses and there will be a drawing for one classroom if there is a tie.

But when the activity sinks in to me, several insights come into plain view.  One, it appears the challenge is primarily only for public schools, granted there could be some Education Minnesota members in non-public schools, but may not be as many as in public schools.  I do not think there is less interest to attend caucuses between public and non-public schools.  Secondly, the office of Governor is being used to foster civic involvement which is great, but seems primarily to public schools, why not others?

I have been a big promoter of civic education and involvement for decades from instructing students in Washington DC to talking with young people at the State Capitol in a non-partisan way to all people.  Did Education Minnesota take a broader approach to be inclusive rather than be exclusive?  If not, why not?

By the way, when the poll is taken the next day per the Education Minnesota flyer as to who went to their precinct caucuses it should be done in a way to respect the freedom of association, it is an important element of privacy and liberty.
Student Caucus Turnout Challenge
Student Caucus Turnout Challenge