Facial Recognition in Minnesota

Below are my comments which I have submitted to the LCC subcommitee on Data Practices for their hearing on Thursday, November 7, 2019.

I will not be able to attend the meeting of the LCC subcommittee on Data Practices, but I wish to make brief comments and direct members to information.

A number of years ago I read about new technology being used at the 2001 Superbowl in Tampa, Florida.  As thousands of fans entered the stadium, cameras with 'facial recognition' were being tested secretly.  News reports later told about it. Ever since I have been involved in following the technology and its implications.

The state of Minnesota is involved with facial recognition technology.  First, with digitization of millions of driver license photos with facial recognition standards.  Same is with the booking and arrest photos that the Bureau of Criminal Apprehension collects in the Minnesota Repository of Arrest Photos know as MRAP.  Both of these actions have happened within the last decade.

Comparison with photos (recognition purposes) has happened with these state databases in two significant ways. There has been an active use of the drivers license photo base in dealing with fraud (Minn statute 256.01 subdivision 18d and e) in the human services area.  MRAP has been used by law enforcement agencies in the past. I have done data requests with the Department of Public Safety on this topic which has given me information about their programs.

The MRAP program has increasingly over the years NOT been used for the purpose of comparing photos with facial recognition.  In conversations with officials I've been told they are looking at new software.

Tony Webster did a data request to Hennepin County Sheriff covering biometrics and the use of it which facial recognition is a part of.  What Mr. Webster discovered was that Hennepin County Sheriff Rich Stanek was in midst of researching and implementing facial recognition without policymakers and public knowledge.  Mr. Webster did a story on this: "Hennepin County Sheriff circumvents state to expand facial recognition database"   Link: https://tonywebster.com/2016/06/hennepin-sheriff-facial-recognition/

Local media also reported on this issue brought to attention by Mr. Webster's piece.

Facial recognition technology challenges First and Fourth Amendment principles to their core.  Nothing new as Minnesota policymakers have discovered with avalanche of new technology such as Stingray, license plate readers, for example.  There are no restrictions or regulations in Minnesota with use and deployment of this particular technology.   A recent paper entitled,  "Facial Recognition and the Fourth Amendment" by Andrew Guthrie Ferguson gives some insight on implications of this new technology. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3473423

Racial bias in use of facial recognition is being discussed across the country by policymakers, law enforcement, and the public.  In the City of Detroit debate is happening per the New York Times - "As cameras track Detroit's residents, debate ensues over racial bias https://www.nytimes.com/2019/07/08/us/detroit-facial-recognition-cameras.html 

The Center on Privacy and Technology at Georgetown University (Washington DC) has done research on facial recognition.  It focused on states use of facial recognition and extensive research on the topic in their study - "The Perpetual Line-Up: Unregulated Police Recognition in America"  You find attached to this email the report and profile of Minnesota.  The report is long, but has recommendations for legislatures and Congress.  This is the link to those recommendations: https://www.perpetuallineup.org/recommendations

The Center recently released two additional reports:

- Garbage In, Garbage Out: Face Recognition on Flawed Data  https://www.law.georgetown.edu/privacy-technology-center/publications/garbage-in-garbage-out-face-recognition-on-flawed-data/

- America Under Watch: Face Surveillance in the United States https://www.law.georgetown.edu/privacy-technology-center/publications/garbage-in-garbage-out-face-recognition-on-flawed-data/

The United States House of Representatives had a hearing on facial recognition this past summer.   One of the pieces of research done was by the General Accounting Office in a report entitled: "Face Recognition Technology"  The report deals with the federal government initiative of having a a connected database of photos among the states that can be used for facial recognition.  A number of states have agreed to this with the federal government, some have banned used of drivers license photos, other states have current laws restricting use of of drivers license photos.  The report is attached.

This is the first time that a body of the Minnesota Legislature is taking up the topic of facial recognition on it's own without being intertwined with other initiatives.  Today's meeting is not to be one of reaching what the law to be, but the beginning of discussion with the public as to what the law should be.

It takes time and examination to answer the serious questions this new technology challenges us with.

I wish to thank Clare Garvie (Center on Privacy and Technology at Georgetown University) and Freddy Martinez (Open the Government) for providing information that was used in this comment.

Feel free to contact me for any questions or want more information.

Rich Neumeister

Attachments which I sent to the subcommittee are below.

Perpetual Line-Up: Unregulated Police Face Recognition in America

https://www.perpetuallineup.org/sites/default/files/2016-12/The%20Perpetual%20Line-Up%20-%20Center%20on%20Privacy%20and%20Technology%20at%20Georgetown%20Law%20-%20121616.pdf

Minnesota profile on Facial Recognition

https://www.perpetuallineup.org/jurisdiction/minnesota

GAO Report-Face Recognition Technology

https://www.gao.gov/assets/700/699489.pdf

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

FOIA, Trump/Clinton, and you.

This campaign cycle we have been hearing comments from the presidential candidates and their surrogates saying the media coverage is rigged or efforts by a non-profit organization is a "right-wing" conspiracy against them.  Such entities like the New York Times, Washington Post, and Judicial Watch are using public record laws to look into Donald Trump's and Hillary Clinton's past.

Holding individuals who want to lead the nation accountable is a fundamental thing to do.  This is why efforts using state and federal freedom of information laws has been under attack, it makes the candidates and their operations uncomfortable to answer the questions which the documents raise.

Nevertheless, you can also use the tools of freedom of information laws on a local and state level.  In Minnesota, it is known as the Minnesota Government Data Practices Act.  Now I do not expect the reader of this post to read the law (linked above) and do a data request.  There are easier ways to understand the law and your rights to lift the veils of secrecy of government.

How to request information from a agency or entity of a local or state government:

http://www.ipad.state.mn.us/opinions/docs/datarequestmain.html

The Information Policy Analysis Division which is part of the Minnesota Department of Administration offers the above suggestion.  They also offer advice  with a model letter how to ask for information from the government.

A simple letter by a citizen to a government agency can cause government and what it does to be exposed and ingenuous.  This is an example which I did in September of 2013.

"Pursuant to the Minnesota Government Data Practices Act I wish to inspect and review all government data about the cell phone location tool known as the (Kingfish) including, but not limited to, such items as protocols, procedures, legal thresholds, Attorney opinions, evaluations, correspondence, and results of use."

This elementary request for public data sent off responses that found an agency lying to the public and the Minnesota Legislature about "StingRay."

To hold accountable government is just like holding candidates answerable who want to run for the highest elected office in the land.

Hennepin County Sheriff watching us from afar with drones?

It was not the public that got the first chance to see a drone being flown under the auspices of the Hennepin County Sheriff last Thursday. (March 17, 2016)  But a number of specially invited people including policymakers.  A legislator confirmed being invited, but did not attend because "too busy" at the Capitol.

The acquisition of a drone by the state's largest populated county raises issues that the public has a right to weigh in on.  For example, the broad expansion of surveillance of individuals that greatly increases what "plain view" and public visibility means.

Does the Sheriff' have rules and policies for his own, leased or possible drones?  If Hennepin County Sheriff has policies are they like swiss-cheese with holes that allows for exploitation of these unmanned aerial vehicles with our privacy rights and civil liberties?  Did the Sheriff get the drones with own appropriated dollars from the County specifically approved by elected Commissioner's?  Homeland Security grant?  Or a deal with a vendor for free or low cost?

With no state law on the books yet for drones, will the Sheriff and supposedly other law enforcement agencies who may have them in Minnesota get search warrants?  What is the role of Federal Aviation Administration regulations and authorization which were just recently released?

Under leadership of Sheriff Stanek, (also BCA) there has been past purchases of sophisticated technology such as the KingFish (cell-phone surveillance device) which can and has compromised individual privacy rights. One reason for law change by the Minnesota Legislature in 2014.

Special invitees got notice about Sheriff Stanek's new tech toy, but no member of the media or public. It was clearly emphasized by the Sheriff, no media or public were to be allowed   This is not unusual behavior of law enforcement.  I know because of decades of experience in trying to get data from law enforcement to bring sunshine to their activities.  My most recent long fight was with the Bureau of Criminal Apprehension on the Stingray.  If law enforcement does not have to tell the public on these kind of matters, they won't.

The behavior of the Hennepin County Sheriff on this issue and other government entities who may be doing the same, absolutely, sending a message to the public, you have no right to know!

BCA does not want you to know how much they spend on spy devices

  

It is no secret that Minnesota law enforcement generally wants to keep hidden from the people new technology that does surveillance and monitoring of people.  Just review the past several years of this blog on matters such as Stingray, Kingfish, and to some extent license plate readers, among other topics I have written about.



 It was through data request's that I found out that at least the Bureau of Criminal Apprehension (BCA), even though the data was limited, owned or operated cellular exploitative devices, such as Kingfish and Stingray.  It took the Legislature with questions that more information was given.

 But even today the public and Legislature does not know the amount taxpayers has spent or will spend on the Stingray and similar devices since 2014. (See document above, page 7,  part of BCA/Harris Corp contract)  The Bureau of Criminal Apprehension has told me and the Star Tribune that having knowledge of public dollars spent would be too much info for the bad guys to know.  They have even refused to give the general amount spent.  As Drew Evans, ‎Assistant Superintendent of BCA, stated to the Star Tribune in written form:

"This would not only endanger the lives and physical safety of law enforcement officers and other individuals, but also adversely impact criminal investigations,” Evans wrote. “Disclosure of this information could result in the BCA’s inability to protect the public from terrorism and other criminal activity because, through public disclosures, this technology has been rendered essentially useless for future investigations.”

So here we have an agency that will neither tell elected officials or the public the general amount spent on devices that can intercept conversations and text messages of people with auxiliary equipment and upgrades such as the "Fishhawk: or "Porpoise", and that collects data on innocent people who may be in the area of the target.

The Bureau of Criminal Apprehension to spurn and mock the public's and Legislature's right to know how much it spends on technology that has an acute and extreme involvement with our privacy and civil liberties only undermines the Bureau's credibility.

As I know by the Star Tribune's and my past experience in trying to get the Harris Corporation contract and FBI disclosure agreement, the credibility of BCA with me had never been at it's lowest.

Confidently, the public and legislators will begin to realize the BCA's efforts to hide the amount of public $$$ is not because of criminals and terrorists.  The Bureau does not want you to know because they do not want the accountability and inquiry, they so deeply and crucially need on matters of public dollars spent on surveillance technologies that compromise our autonomy, privacy, and civil liberties.

NOTE: This is the full agreement of the contract between the Harris Corporation and the BCA.  Also included is the FBI non-disclosure agreement.  Courtesy of the Star Tribune.