The Commissioner's letter gave new details to the public, but also raised many questions and issues.
First, what we learned from the Star Tribune copy of the letter is that the Bureau of Criminal Apprehension (BCA) has two cell phone spy devices, the Kingfish, but also a "bigger brother" called Stingray 2. Secondly, the devices were purchased primarily by state general funds, not Homeland Security dollars from the Feds. The Kingfish has been discussed in previous blogs. The Stingray has not.
The Electronic Frontier Foundation (EFF), a national organization on privacy and civil liberty issues, has been in the forefront on a national level with the Stingray. EFF characterizes how the Stingray works as follows:"The Stingray is a brand name of an IMSI catcher targeted and sold to law enforcement. A Stingray works by masquerading as a cell phone tower—to which your mobile phone sends signals to every 7 to 15 seconds whether you are on a call or not— and tricks your phone into connecting to it. As a result, the government can figure out who, when and to where you are calling, the precise location of every device within the range, and with some devices, even capture the content of your conversations. (Read the Wall Street Journal’s detailed explanation for more.)"
Those capabilities are different then what the Commissioner describes in her response to legislators. In her letter, the Commissioner stresses that content cannot be captured, and that no "specific personal identification" is viewed.
More detail on the Stingray can be found by reading the article, "Meet the machine that steals your phone data" It has a section discussing the Kingfish, Stingray and Stingray 2. It states in part:
"The Stingray can be covertly set up virtually anywhere—in the back of a vehicle, for instance—and can be used over a targeted radius to collect hundreds of unique phone identifying codes, such as the International Mobile Subscriber Number (IMSI) and the Electronic Serial Number (ESM). The authorities can then hone in on specific phones of interest to monitor the location of the user in real time or use the spy tool to log a record of all phones in a targeted area at a particular time."
Legislators had asked Commissioner Dohman about whether her Department obtained warrants before "accessing cell phone data or locations." The Commissioner's response was cryptic and unclear about whether a warrant is required. Her letter stated that a "court order" was required, and she attached a copy of a court order. However, the example document is a court order that requires a low threshold - not a warrant that requires probable cause. The sample order also relies on a more than 25 year state law which has not kept up with today's emerging technology. Things such as Stingrays and Kingfish's were never dancing around in legislators and the public heads back then.
Another part of the Commissioner's response that caught my attention was her answer to question 7: "Have these devices been used in or near the state Capitol to surveil people on the Capitol grounds?" In NSA style, she replied "No, they are not used as surveillance tools." So my question, then, is what kind of tools are they? I am sorry to say that they are surveillance tools.
The public discussion that is occuring around these cell phone detection devices is much broader than than the devices themselves. It is about emerging technologies that law enforcement is getting and using without the knowledge of policymakers and public knowledge. It also about how these new tech tools fit in with decades-old law, and how we can make sure that the use of these technologies does not compromise our privacy and liberties.
I wish to thank the four legislators who signed the letter to ask the Department of Public Safety for more information. What the BCA gave to the officials were answers to questions....not the data itself. Some of the answers given to the legislators were related to data that I asked for in my data practices request. But I have learned over the decades in tangling with law enforcement if they do NOT want to give out information or have to, they won't unless there is pressure. This is a prime example.