Tuesday, October 15, 2013

An indefensible and odious practice with (Foia-Data Practice) data requests

Of all the practices that government agencies do that obstructs the relationship between individual and government and may incense the public more than others is when they do not answer your data request or saying you are not going to get the data through a paragraph or two of legalese.

In many instances, for example, parents may want to get information to appeal a special education decision about their child, a community organization may want to get data on neighborhood developments, and the government will give you an answer that has nothing to do with your data request, or may not answer you at all.

Something like that happened to me recently when I did a request to the Bureau of Criminal Apprehension/Department of Public Safety for information about their surveillance tool which they would not even name.  In my data request I was hoping to get inactive criminal files which would tell me in situations it was used, to get data that would outline how the agency makes sure that the tool is not used in violation of our rights and liberties, "accountability"  Also if law enforcement is using the tool in an appropriate and responsible way.  But if you look at the response by the Department of Public Safety closely you will note they do not answer my request directly.  The agency takes the position "we cannot provide details about the equipment" to me.

The attorney representing the agency goes on to say in the letter, "any disclosure regarding the manufacturer, model,...........or other specifics......can render the system useless."  I did not know that the name of the manufacturer is such a secret that if released to the public it would cause great harm.

The focus is on the cellular device itself with their response.  But my request was also for results of the use of the device which BCA wishes to remain nameless.  The public data which should have been given to me is the inactive criminal investigative (closed) files which have allowed me to see what legal thresholds were used, in what situations the device is used, and the results of the use.  Granted some data can be redacted, but to say zip.  Come on now.

But what I just described to you happens many times with just plain residents of this state trying to assert their statutory rights to review their own data, possibly to find out why an agency made the decision they did and chooses to fight it, or a group of people wanting to find out if their property rights are being violated with a possible development.

So how do we the public make sure that government does not behave like this to the populace.  First of all, call the person or send a communication to them pointing out where you disagree, ask them to review again the request.  Many times my experience has shown that their review again provides the data you are asking for or what you really wanted.  Secondly, also speak with the (find out who) data compliance official of that agency or local government.  (example,  City of St Paul has one, state agencies have one)  But also speak with your state legislator, they are the ones that make the laws.

Now with my current data request with the Bureau of Criminal Apprehension concerning that hush, hush secret surveillance tool.  I sent another data request for government data asking for the contract with the mysterious company, the date and the cost of the equipment. I am still fighting.

Sunday, October 13, 2013

What's behind the secrecy wall of Hennepin Co Sheriff and BCA?

When was the last time that you ever heard of a government agency spending almost $400,000 (see note below) dollars for equipment and upkeep of it and then telling the public, "It's none of your business."

Well, it has happened to me twice in two weeks. I believe the cost of BCA's tool and upkeep is nearly the same. The subject was my data practice requests of a high tech tool called the Kingfish or a similar cellular exploitation device that both Hennepin County Sheriff' and the Bureau of Criminal Apprehension (BCA) own.  The responses to my data requests are as follows:

Bureau of Criminal Apprehension/Department of Public Safety
Hennepin County Sheriff

How can this be?  It is a seven letter word:

 (1) the condition of being hidden or concealed
 (2) the habit or practice of keeping secrets or maintaining privacy or concealment 
 Source: Merriam-Webster

Both the Department of Public Safety and the Hennepin County Sheriff's have taken positions that they want to conceal, hide, or keep secret the use of this device.

As someone who helped legislators pass major changes with Minnesota law dealing with electronic communications 25 years ago, 626A (Privacy Communications Act) I am familiar about the importance of our privacy and liberties and how Minnesota law enforcement fought against those changes.  But what has happened since then is that technology has changed and law enforcement has better tools and toys which invade our privacy and compromise our liberty, and they do not want to let the public know about it.

Some of the few questions I am trying to get answered are as follows:

In what situations are the cellular exploitation devices used?

Are the BCA/Hennepin Co Sheriff invading people's privacy and liberty at a low legal threshold or no threshold rather than get a search warrant?

Who oversees and approves the use of the equipment?  Where is the accountability?

How many innocent people have been within sights of the Kingfish or similar device,  the data collected and those subjects of the surveillance who may not even know about it,?  How many arrests have happened with the use of this device?

Kip Carver, an official in the Hennepin County Sheriff's office stated to the county's commissioners three years ago that the cellular exploitation device may be used hundreds of times a year.

How frequently are the cellular exploitation devices used and the number of subjects?

Depending if the cops are using a low threshold or none at all in using this device are they doing so to avoid an appearance before a judge where a search warrant (top standard to protect our privacy & liberty) needs to be issued and where questions can be asked?

What is the role of the prosecutors in situations when this equipment is used?

In my data request I asked for the legal thresholds that the agencies must go by in order to use the Kingfish?  What is so secret about that?
At this time, the attitude that both agencies have taken with my data requests give the Minnesota Legislature and most important the public no idea how this tool has been used, is being used,  how an individual or individuals get chosen to be pursued, and who is accountable.

As some people may currently know I have been working to possibly update our state laws so that the rule of law applies to whats happening now in 2013 not in 1988-1989 when 626A had its last major update.

Even though the Department of Public Safety and the Hennepin County Sheriff do not want to tell me or the public their protocols, policies, procedures of accountability, legal thresholds, and other appropriate public data I will still push on and I hope others will.  I am not interested to live in a state where law enforcement rules and not the people.

NOTE:  Earlier version of this post incorrectly stated "a million".  The Homeland Security Grant ($426, 150) approved by Hennepin County Board in March of 2010 for the purchase of a cell exploitation device was incorrectly added to the amount stated in contract between Harris Corporation and Hennepin County Sheriff which implemented the purchase.  That cost was $389,050. 

Thursday, October 10, 2013

Keep law enforcement in check

Over the years at the Minnesota Legislature in my advocacy of open government and privacy a by product of that has been to keep power in check.  Whether it be government power or private institutional power.

An aspect of power that I have drifted to more than others to keep in check has been the power of law enforcement.  Ever since I was a youngster being raised in McDonough Housing Projects or in the Frogtown neighborhood of St Paul it became clear in my diverse community the difference how you are treated by police based on the color of one's skin.

Being raised in the sixties does have an impact on you when the television is inundated with police and barking dogs towards people who are fighting for their rights.  As I became more aware as to who I am and learned things I became to realize there are good cops and bad cops, but understood when they told you to stop, you stopped, they had power.

As I spoke with a public attorney of a law enforcement agency this morning on being denied government data on the accountability of how cops use cell phone trackers, I was guided by my focus of keeping power in check.  I stated to the attorney that there should be data that is public on how cops use this device.  I stated a number of items that should be accessible to the public.

Why I push after being denied access to government data (this situation) is because I need to know if agencies such as the Bureau of Criminal Apprehension and the Hennepin County Sheriff's office who have and use the Kingfish (intercept cell signals to find the phone's location) are abusing our rights with their power.

I want to know if there is supervision and accountability with the use of this equipment, is it done with a search warrant, or is it being used in a way with no accountability or transparency?  In what situations is this "secret" device used for?  These are just a number of questions I would like to have answered.

Over the past year I been doing numerous data practice requests of numerous law enforcement agencies.  The requests range from polices and procedures on how cops download your cell/smart phone and with what authority to the use of administrative subpoenas.  I have read thousands of detail of public government data that deal with law enforcement.  I read substance that disturbs me and I ask the question are our rights and privacy being violated or compromised.

Several weeks ago I spoke with a law enforcement official.  We were talking about his agency.  The person indicated the direction the agency may go in some of its duties and could have a meeting in the future about it.  The topic was one I thought could have an impact on rights and liberties.  I said I would be interested in that.  What was stated straight back to me, "It's none of your business."  I then said, directly back, "It's the public business."

Now this reaction by some law enforcement officials in this state is not new.  I have interacted and dealt with it for decades.  But I have and still continue to ask the questions, read the data/documents, and keep law enforcement in check, but it is important that others do the same.

Don Gemberling,  who for decades was the state's top data practices person and still active as a private individual who lobbies the Minnesota Legislature recently said to me when we were talking about the power of law enforcement and the public role in checking that power:

"Within the mainstream of the history of American political thinking in this country, keeping a check on law enforcement is why we have the Constitution."

Wednesday, October 9, 2013

Open Letter to Hennepin County Commissioners about privacy & accountability

Three and a half years ago you approved the receipt of Homeland Security funding ($426,150) for the "Kingfish" device. This is a device the Star Tribune called a "controversial tracking device that can pinpoint cell phone locations even when they're not being used".  The County is now paying nearly $400,000 to the Harris Corporation for the maintenance of your cell tracking device.

This cell phone sniffing device is now being used and administered by the Hennepin County Sheriff's Office.  There were concerns by some of the commissioners in 2010 about illegal searches, compromising privacy and civil liberty interests, and government surveillance of movement.

Per the Star Tribune in 2010:

"Inspector Kip Carver told the Board prior to the vote that the department is committed to using "best practices" in using the system and that it will seek opinions from the Hennepin County attorney's office and draw up guidelines on when and how the system will be used. "I think it will be helpful to know what all of the standards are," said Commissioner Gail Dorfman, who earlier this month voted to table the matter".

In another article by the Star Tribune, Hennepin County Board Chair Mike Opat said he "still wasn't sure whether it might be susceptible to abuse or whether it was an appropriate tool for the Sheriff's Office".

The Star Tribune continued to state that, "Kip Carver, a Sheriff's Office inspector who heads the investigations bureau, told commissioners that the device would track only cell phone numbers obtained through a search warrant, and couldn't be used without a court order.  Asked how many times a year the device might be used, he said it could be in the hundreds".

With the Kingfish and its newer brother, the Stingray in the news, I decided to do a data practices request on the "best practices" used by the Sheriff's Office, any County Attorney opinions, the guidelines on when and how the device will be used,  the standards which Ms. Dorfman spoke about, the results of the use of this device, and also the legal thresholds for when to use it.
I did an earlier blog post on the Kingfish titled:  Cell-Phone tracking: Minn cops know where you are with Kingfish   The data practices request I asked of the Hennepin County Sheriff's is included in another post I did describing the Kingfish.

Today I recieved a letter from the Hennepin County Attorney's office which stated that I am not getting any government data pursuant to my request because the county has chosen to keep all data secret except the contract with the Harris Corporation. I will interact with the Attorney's office about their letter because I believe there is some data that is public, and their opinion is incorrect.

So who is doing oversight to make sure that all those concerns and discussions that took place several years ago about overseeing this cell tracking device are happening?  I am trying to do this as a member of the public who has an interest for our privacy and civil liberty interests.  But are you as elected officials doing it?