Dohman's response about Kingfish sounds like NSA

Today, Commissioner Dohman of the Minnesota Department of Public Safety provided a letter to legislators who had asked her about the Department's cell phone spy equipment.  Her response was terse, indirect, and parallels the responses given to Congress in regarding the leaked NSA operations. 

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.

Personal note:

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.

Why cops nixing 4th Amendment protections at Legislature

In a conference committee technology and privacy rights, will be tangling soon if a bill passes in the Minnesota House on Tuesday.  The debate is centering on three areas: authority of law enforcement to obtain and use records from cellphone towers without a search warrant, ability to reel in a troves of user data collected on innocent people as well as a target when government uses such surveillance devices as Kingfish, Amberjack, Fishawk, Porpoise and Stingray without a search warrant, and whether the search by government of your cell phone location data is a "search and seizure" under the 4th Amendment.

The House bill has a probable cause court order standard not a "search warrant based on probable cause" which is a big difference for the protection of Minnesotans privacy and liberties.  The search warrant requirement passed in two House committees, but not in a third.

In just the use of the Stingray/Kingfish law enforcement authorities has tapped and used it over 600 times plus in the last several years.  Law enforcement agencies do "cell phone tower" dumps where they collect tower location records on innocent people along with the targeted individual. Using such surveillance devices as Stingray, activities with "tower dumps", and getting easy access to your cell/smart phone record by government shoveling up cellphone communications across a broad spectrum of Minnesotans, there should be Fourth Amendment statutory protections, a search warrant

The law now allows law enforcement to tell a judge the cellphone information is relevant to their criminal investigation for a court order.  It is important to have a stricter and higher legal standard, with government required to show probable cause that a crime was or is being committed and obtain a search warrant.  But to obtain the search warrant is what Minnesota law enforcement lobbyists and authorities do not want.

Law enforcement has argued no need for search warrant and does not want it even mentioned in the bill because they do not believe it is a "search" or breach of a "reasonable expectation of privacy"  I on the other hand do believe that Minnesotans through their elected officials are prepared to recognize a expectation of privacy in their location that mandates government obtains a search warrant.  When I ask law enforcement officials and lobbyists, why it not an invasion of of privacy under the 4th Amendment and why a search warrant should not be used to track and collect cell/smart phone location.  I am basically told there is no expectation of privacy, the data and records are held in third parties, and there is no need for a 4th Amendment search warrant.

With disclosure several months ago that the Bureau of Criminal Apprehension spent more than $600,000 of general fund monies on the Stingray/Kingfish, there has been a heightened scrutiny on the use of this technology.  I have done several data requests which I have reviewed , but also have been denied.

The Bureau has denied they do real time interception of phone conversations and text messages. But their honesty and openness on this overall topic has not been strictly open and direct with policymakers and the public.  In a published story, Harris Corporation does have equipment which allows for interception of phone conversations and text messages which they also promote. "Procurement documents indicate that the Stingray can also be used with software called“FishHawk,” (PDF) which boosts the device’s capabilities by allowing authorities to eavesdrop on conversations. Other similar Harris software includes “Porpoise,” which is sold on a USB drive and is designed to be installed on a laptop and used in conjunction with transceivers—possibly including the Stingray—for surveillance of text message."  (Meet the machines that steal your phone's data)

As some of you may know who may read recent posts, the Stingray is a device that is very portable  which emits signals to where your smart phones may be while you are in your home or going down the street and pairs up with the digital signals of your personal smart/cell phone.  And by magic the revelation of where you are is gotten by law enforcement.  But a negative that happens also is that innocent and law abiding individuals data is inhaled and the people do not know that.

So why is law enforcement particularly BCA so adamant about not having to get a search warrant to use the Stingray and get access to Minnesotans cell phone location?

(1) Law enforcement does not believe that Minnesotans should have the highest protection of the privacy from our Federal and State Constitutions, need for a search warrant under the 4th Amendment when they want access to your cell phone records or when surveillance is done on you in real time with such devices as Stingray.

(2) Law enforcement believes you have no expectation of privacy guaranteed by the 4th Amendment when records are held about your movements and associations by third parties such as Verizon and other communication carriers through the use of you cell/smart phone.

(3) Law enforcement does not want well-established body of case law that deals with search warrant and protects Minnesotans from intrusive behavior that compromises our liberty and privacy.

(4) Law enforcement wants to shield information about new technologies being used for surveillance purposes, therefore no search warrant.  As a recent Appeals Court in Florida found out.  Law enforcement "did not want to obtain a search warrant because they did not want to reveal information about the technology they used to track the cell phone signal."

(5) Law enforcement by having to do a search warrant must give to the independent judge specifics and particularities about "search and seizure" and how it interacts with privacy rights guaranteed by the Fourth Amendment.  In the context of cell phone surveillance, it would mean the particular cell phone they are following and shadowing and what information they want.  Not having specifics can be a difference between doing real time surveillance of a smart phone's location and trailing a phone's location for any time period.

A search warrant requirement is much more than just inserting the words probable cause.  A search warrant requires specificity and also allows a judge greater authority to supervise the execution of the warrant.  This is particularly important when law enforcement uses the Stingray/Kingfish and real time surveillance of individuals.  The use of technology and "tower dumps" allows for collection of innocent people's communication and location data.

For those concerned about what Minnesota law enforcement and other agencies might do with the data that your personal device in your pocket produces without Fourth Amendment protections, just think of the places you go to----the data can reveal an individuals 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."

Minor differences of a court order based on probable cause with no mention of stating it is a search warrant in statute can be minor but can be constitutionally significant and also compromise an individuals Fourth Amendment privacy and liberty interests.

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. 

Sincerely,

Drew Evans | Assistant Superintendent

MN Bureau of Criminal Apprehension

1430 Maryland Ave. E

St. Paul, MN 55106"

Tales of Stingray and Kingfish continue w hook of data request

As many readers of this post know since September of last year I have been doing data requests and lobbying for a bill at the Minnesota Legislature that would give greater protections for Minnesotans when government entities want access to your personal and sensitive location data.  Well that bill passed and became law.

For me though, questions still remain about the usage of the Kingfish/Stingray and the recent disclosure that these devices have been used hundreds of times by the Bureau of Criminal Apprehension.  In effort to find out what was the rationale for its usage so many times I am continuing with data requests under our Minnesota Government Data Practice Act. (statute)

This is part of a recent data request I sent to the Minnesota Department of Public Safety which the Bureau is a division of.

"Pursuant to media coverage, the cellular exploitative devices known as the Kingfish/Stingray have been used hundreds of times over the past several years.  

I have reviewed approximately 20 cases that the devices were used specifically by the BCA for BCA cases that the agency was responsible for.  I have done this pursuant to previous data requests.

This appeared recently in the the newspaper, "Politics in Minnesota"

"Currently, the Hennepin County Sheriff’s Office and the state Bureau of Criminal Apprehension are the main agencies known to use such technology. The BCA uses it roughly 100 times a year, according to a spokeswoman."

What I am requesting per Chapter 13 is to inspect and review all government data that documents the usage of the cellular exploitative devices since 2008 with other agencies or entities.

In my discussion with......why the usage of cellular exploitative devices hundreds of times, but so few inactive criminal investigative files held by the BCA to document the usage.  ......indicated that BCA will act many times in a supportive role in the use of exploitative cellular devices, therefore no case file because "it's" not their case.

But I do believe there must be documentation when an device such as the Kingfish/Stingray is used in a supportive role as described to me by........

I want under Chapter 13 to review and inspect all government data that documents the usage of the cellular exploitative devices (Kingfish/Stingray) since 2008 with other agencies or entities."

I left out the name of the person I spoke with.  But what you see here is an example of using a statutory/law for accountability and to bring sunshine to an issue that continues to be of interest to many people.

I will keep you posted.

Secrecy of Stingray tracking of Minnesotan's is because of ignorance, carelessness, or complicity

A step to bring more sunshine and accountability to rapid new and secret technology used by law enforcement to the public and Minnesota Legislature has fallen short.  It was more of a document of bewilderment rather than anything else.

By statute every two years the Minnesota Court Administrator's office must file a report to the Minnesota Legislature about electronic surveillance activities that law enforcement does in Minnesota.  Such detail as from previous reports indicated specifically for what crimes, what was used, and so forth.  The 2016 report which was released last month was a very abbreviated version from the ones over the past few decades.  Just compare the 2016 report with any of the others from previous years, quite a difference.  Here is the one from 2014.

But what was different and very clear there was hardly anything about "tracking warrants" mentioned.  A tracking warrant is a court order based on probable cause that gives law enforcement the right to track individuals using devices named such as StingRay, KingFish, and FishHawk.  This is based on a law passed by the Minnesota Legislature in 2014 after it was discovered by the public and the Minnesota Legislature that Hennepin County Sheriff and the Bureau of Criminal Apprehension had these devices. The Bureau of Criminal Apprehension spent hundred of thousands of dollars on these devices and kept it secret from policymakers and public for nearly a decade.

What these devices do and with their software is track an individual down to within feet of their exact location.  With add-on of software could intercept content of communication between people.  It is so "secret" on these matters even today the Bureau of Criminal Apprehension refuses to release even the amount they are paying for these surveillance devices to the Harris Corporation.

The report released last month was the first one since the implementation of the new law.  There was no detail about tracking warrants, particularly, how many times the Stingray and their brothers were used and for what purposes. And the reason why?

Tracking warrants were to be unsealed after the order was no longer needed for investigative purposes. There could be extensions for continued sealing but as it was clear in the 2014 legislation, eventually it would be public and even the subject of the surveillance would be notified.  But for nought this has never happened......they all remain sealed and secret.

The promise of scrutiny by the public and Minnesota Legislature of secret law enforcement surveillance activities with use of hush-hush high-tech technology by the 2014 law has been nixed. (The law had a reporting mechanism to be a part of the every two year report, subdivision 5)

It appears that law enforcement and the Minnesota courts could be participating in a culture of secrecy either out of ignorance, carelessness, or just plain complicity in not wanting to follow the law.

For more background on this issue please check out these news pieces by the Fox News affiliate Channel 9 and done by reporter Tom Lyden:

State of Surveillance: Stingray warrants sealed despite change in state law

New report details tracking warrants in Minnesota

Minnesota BCA gets "F" for chicanery on Stingray

Anyone who involves themselves in the study of government knows an endearing principle of it.  There must be trust between it (government) and the people or individual.  Many of us strive for that on the local, state, and Federal level.  But when the Bureau of Criminal Apprehension does the kind of behavior exposed by the Star Tribune today which is dark and noxious, the public and Legislature need to step in and ask questions and get answers.

If one reviews the record of the Star Tribune's and my interactions with the Department of Public Safety (DPS) and the Bureau of Criminal Apprehension (Division within DPS) in using the Minnesota Government Data Practices Act over the past 15 months to get access to documents such as the contract between the Harris Corporation and DPS, it is indisputable, the tricks and antics the Department of Public Safety did to stifle access to public information.  This is shameful and does not stand to what sound and open government is all about.

First, if one looks closely at the date of the contract the BCA dumped on late Friday afternoon you will notice the contract with the Harris Corporation is dated August 18, 2014.  "On June 18, 2014, Star Tribune reporter James Shiffer emailed DPS Commissioner Ramona Dohman, requesting access to (1) the Department's contracts related to "Stingray II" and "Kingfish" cellular exploitation equipment and (2) non-disclosure agreements ("NDAs") related to that equipment."  Mr. Shiffer did not get the contract or contracts dated previously to June 18, 2014.  Why?  Where are the old contracts?

Another example, in response to my requests to review and inspect Stingray and Kingfish contract data which I had done 3 times since September of last year. I got this from the BCA, dated February 14, 2014:

"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."

With Mr. Shiffer, they use the same identical arguments in an email sent to him by Bruce Gordon, spokesperson for the Department of Public Safety to deny him the contract and non-disclosure agreement.

When one assesses the contract it is very clear that the whole document is neither a trade secret nor information that would compromise on-going and future criminal investigations.

To further the point of BCA's misguided behavior, when the Star Tribune asked the Commissioner of Administration to rule on the Department of Public Safety's (BCA) behavior, the Department argued that the:

"The documents were withheld in their entirety due to the fact that heavy redaction of the documents was so intertwined with the public data that we were unable to separate the public from the protected data in a meaningful manner."

What kind of babble and mumbo jumbo is this from the leaders of the Department of Public Safety and BCA?  When one reviews both documents, the FBI/BCA agreement and Harris Corporation contract, one cannot take this argument seriously.

When one evaluates the entire process of the Star Tribune's and my experience in trying to get public data from the BCA on this matter it is pure "mental stress or discomfort experienced" by BCA and DPS "who holds two or more contradictory beliefs, ideas, or values." (cognitive dissonance).  The issue is to what beliefs, ideas, or values are the people who head the agency and the division (BCA) to hold.  Their own or the public's.

The FBI agreement raises a number of issues and questions to be asked specifically of the appropriate people in an open hearing held by the suitable committees of the Minnesota Legislature.  Is the signing of the agreement by the BCA a violation of state law?  Forwarding information on a legal request for public information to the federal government?  Are there situations where defendants Fourth Amendment rights or innocent Minnesotans privacy or liberties been compromised as it appears has happened in other states with such devices as the Stingray?  Have individuals been mislead because of the FBI/BCA agreement?

This section of the FBI agreement is troubling among others:



 
The Bureau of Criminal Apprehension and Department of Public Safety's conduct and actions need scrutiny in an open and public hearing.  To make them accountable for the behavior they have exhibited in efforts to suffocate elected public officials, the Minnesota Legislature, and public inquiries how a law enforcement agency spends public $$$ on tools that compromises our liberty and privacy.

 
NOTE:

Below are links to documents the reader of this post may have an interest in:

The Department of Public Safety's response to Commissioner of Administration on Star Tribune's request for an opinion:    https://drive.google.com/file/d/0B_OkFLQ9BEd0NE5zS1hrZUhIby1EaUV1Q0tDOGNWNDFXdzRj/view?usp=sharing

The Star Tribune's request for the Commissioner of Administration to issue an opinion to make BCA release requested documents:  https://drive.google.com/file/d/0B_OkFLQ9BEd0ZXdYblBsUTBKMlpqX2NXRHQybWtuLU9EbTI0/view?usp=sharing

The BCA documents with the Harris Corporation and the FBI:
http://stmedia.startribune.com/documents/BCA+Cellular+Exploitation+Equipment.pdf