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Lawmakers grapple with cyber-sleuthing technologies

Lawmakers continue struggling with high-tech law enforcement technologies, some of which they fear could erode citizen privacy while widening the racial-disparity gulf.

That was a central discussion Nov. 7 during a nearly three-hour Legislative Commission on Data Practices hearing. Legislators there explored the implications of unmanned drones, police body cameras, automated license plate readers, cell-phone trackers and other emerging technologies.

Rep. John Lesch, DFL-St. Paul, a former St. Paul prosecutor, said that automated license plate readers and police body cameras threaten to widen social disparities. Both tend to be deployed in high-crime neighborhoods, he said, which tend to be poorer, more ethnically diverse areas.

To Lesch, that suggests data on African-Americans and other minorities are captured in law enforcement databases at rates exceeding their proportion of Minnesota’s population.

“That is a disparate impact—which the Supreme Court has stated is an issue—whether you intend to do it or not,” Lesch said.

He asked Burnsville Police Chief Eric Gieseke whether his department takes race into consideration when deploying its dozens of body cameras. Geiseke said it currently does not.

“I’d have to give that some more thought and more research,” he said.

“This is something that this committee is going to have to be dealing with,” Lesch told his colleagues. “Because I think the courts will deal with it.”

Constitutionally scrupulous

Drew Evans, the Minnesota Bureau of Criminal Apprehension’s superintendent, reassured the panel that law agencies are scrupulous about deploying ultramodern crime-fighting tools.

A big factor in deciding which to adopt, Evans said, is whether they are “mature enough to be useful on long-term basis.” Even more crucially, he said, agencies take steps to ensure technologies function within the confines of state and federal law.

“If we fly in the face of the Constitution or do something inappropriately or outside the bounds of the laws,” Evans said, “we will ultimately lose the criminal cases that we are pursuing.”

Sen. Warren Limmer, R-Maple Grove, a long-time privacy advocate, was skeptical. He said that previous legislative attempts to inventory Minnesota law enforcement’s high-tech tools have failed. “As a result, we don’t always know what law enforcement has right now,” he said. The Legislature can’t regulate what it doesn’t know, he said.

Lawmakers have been taken by surprise in the past, he said. The Minneapolis Police Department adopted automated license plate readers—devices that photograph plates, convert images to digitized text and forward the information into a database—six years before legislators knew the technology even existed, he said.

He asked Evans if Minnesota law enforcement would be comfortable with a mandate that they hand over to legislators a comprehensive list of agencies’ high-tech tools.

In terms of general capabilities, yes, Evans said: “But we do continue to have concerns about [identifying] very specific capabilities about a particular technology, or naming that particular technology.”

Evans mentioned cell-phone tracking technologies as an example of what is OK to reveal. “We have said that we can track cell phones through this technology,” he said. “But getting into the details … is what our concern is. So it’s a little bit of a sliding scale.”

Criminals are savvy, Evans said. If they learn which specific applications are in use by law enforcement, they can elude them.

Rep. Eric Lucero, R-Dayton, asked Evans how the BCA views data collection through in-home devices like Amazon’s Echo, marketed as a “smart speaker” but capable of recording conversations and transmitting them into a corporate database—often without a consumer’s knowledge.

Earlier this year, an Arkansas prosecutor tried to force Amazon to turn over recordings a murder suspect’s voice captured that way. Ultimately, the suspect voluntarily allowed the recordings to be turned over. Amazon complied the same day, according to published reports.

“What do you think about that?” Lucero said. “Have you heard of any uses of that in Minnesota?”

Evans did not answer the second question. But he said as long as a court warrant is obtained, law officials see no problem with that type of evidence collection.

“With the proper authorization,” Evans said, “I think all of these technologies should be examined.”

Coming down the pike

The commission’s chair, Rep. Peggy Scott, R-Andover, asked Evans to describe constitutionally compliant technologies that Minnesota law enforcers are thinking about adopting.

Unmanned flying drones are one, Evans said. They can be useful for photographing crimes scenes or finding missing persons, he said. The BCA does not use them, he said, but some local law enforcement agencies do.

“Technical exploitation” technologies capable of reading data from encrypted phones are also being explored, Evans said. He noted the FBI this year reported it had failed to crack into 6,000 smart phones it wanted to examine for evidence.

“That creates a significant barrier for us in law enforcement,” he said. A warrant would be needed before that technology could be used in Minnesota, he said.

“Rapid DNA” also is being explored. In theory, the technology could produce genetic test results in hours, Evans said. But the technology is immature—the safeguards against evidence contamination are not convincing, Evans said. It is not yet being used by the BCA.

Nor is the BCA using facial recognition technologies, Evans said. He added that he is unaware whether any local authorities have deployed that technology. “Facial recognition is something that we continue to monitor,” he said.

Internal discussions

It’s something that citizen journalist Tony Webster also monitors. Last year, he reported that the Hennepin County Sheriff’s Office secretively began using facial recognition after it started warehousing digital images of county jail inmates in 2013.

Webster sued the county to turn over its biometrics data, including any captured through facial recognition. On Oct. 31, the Supreme Court heard his appeal of an appellate ruling that found against him, in part, back on March 17.

Testifying Nov. 7, Webster told commission members it is hard to keep up with law enforcement technologies. He has, however, successfully obtained internal law enforcement emails that detail some internal conversations on the subject.

Much of that talk focuses on facial recognition, Webster said. Emails he has obtained show agencies interested both in using facial recognition to compare existing images against stored databases and in using real time capabilities to instantly identify a face, even in a large crowd. “I want to be clear that I have no indication that technology is in use now,” he said.

There is also discussion internally around “predictive policing,” Webster said. That involves using large aggregated datasets to decide where officers should be sent on patrol. Inside the criminal justice system, Webster added, he has seen discussions about use of datasets to help set defendants’ sentences or bail.

“I think there is a lot of technology that is being used and discussed,” Webster said. “My problem is that a lot of law enforcement agencies aren’t always eager to talk about it.”

Lesch questioned whether law enforcement is “mature enough” to deal with the advanced cyber-sleuthing technologies that vendors aggressively market to agencies. He wondered if an answer to the problem lies in more aggressive enforcement of Minnesota’s data-practice laws.

“Hopefully if the penalties are applied,” he said, “maybe agencies will get the sense that they should look before they leap.”

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