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.

MINN LEG UPDATE #1 Open Secrets 2014

Over the next three weeks as the Minnesota Legislature heads to an end there are a number of bills going forward that will have great impact on your privacy and civil liberties.  It is my intention to let you know about them so you can make a difference with your elected officials.  It is important that with knowledge you can ask the questions and state your position with them.

It is my intention to actively use this blog with posts to do just that inform you what is happening with various bills that have an impact on our rights......It will be from an informed perspective.  I have been lobbying on these issues as some of you may know for decades you may disagree with some of my takes or you may agree, but be aware it is based on information, knowledge, and experience.

I intend to entitle these posts as "MINN LEG UPDATE #1......... and so forth.  I will do these with what is happening in real time or near it as I can can possibly do.  I will also be tweeting on these matters @richneumeister.

Tomorrow there will be a vote in the Minnesota House on the issue of cell phone location.  The crux of the issue is whether or not a search warrant should be used.  Two House committees passed it with "search warrants", but on the final stop it was taken out.  Modifications needed to happen for the bill to progress.  As I stated before in the Committee process I prefer a search warrant.
 
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.

The bill is HF2288

I will be doing a more comprehensive regular post on this tonight.

Minn health plans strangling transparency bill

As the legislative session is set to end in less than four weeks a little bill with token opposition is slowly being strangled by the biggest of all lobbying octopuses, Minnesota Council of Health Plans and their members.

The bill's purpose was to overturn a Minnesota Supreme Court decision that made it hard for the ability of government to guarantee privacy protection and access to public data with private parties that do business on the government's behalf.  Government does a lot of business with private parties from social programs to economic development studies on the government's behalf.  The Minnesota Government Data Practices Act was amended some 15 years ago to say that if a private party has contract with government to do a government function they come under the Act.

As the bill passed very easily in both Senate and House Committees and waiting on the floors of each body to pass.  The plans have secretly been lobbying behind closed doors to have data that is now currently public to be secret.  Depending on what legislator, lobbyist, or person involved with the bill it is hard get an idea what they are trying to do.

It is like Kabuki theatre (is a classical Japanese dance-drama. Kabuki theatre is known for the stylization of its drama and for the elaborate make-up worn by some of its performers.) at the Legislature on this issue.  There have been three proposals so far to try to deal with the health plans concerns.  One proposal was amended to the bill, SF 1770.

The language was added based on discussion with the Minnesota Department of Human Services, the IPAD division of the Department of Administration, Minnesota Newspaper Association, and Minnesota Council of Health Plans.  The language added is this: "governing access to and classification of the data." What the language does is negate numerous statutory privacy rights of individuals who have data with private agencies because they are involved with a government program under contract.  The private entity has data about individuals which they may administer.  For example, a chemical dependency program.

Yesterday the companion to SF 1770, HF 2167 was on the House calendar, but was mysteriously pulled off the docket.  Before being pulled it had two proposed amendments listed to possibly be placed on the bill.  Both amendments would have placed huge holes for transparency and accountability of private parties who have have government contracts.

Now all of a sudden a hearing is scheduled for tomorrow afternoon which is very unusual in the late game of the legislative session.  It is happening because of the power of the health plan octopus and its tentacles and because they want data that is now public to become secret.

The House Civil Law Committee will be meeting jointly with the Health and Human Services Policy and Health and Human Services Finance Committees on Friday, April 25 to discuss HF 2167. The hearing is scheduled for 3:00 PM or 30 minutes after the House floor session in Room 200 of the State Office Building.

Will the backroom machinations in the age of transparency kill a good bill?

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.
http://opensecretsmn.blogspot.com/search?q=license+plate+readers

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"

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.

TESTIMONY OF MATT EHLING

BOARD MEMBER

MINNESOTA COALITION ON GOVERNMENT INFORMATION

HEARING ON HF 1940

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.

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.