A recent KARE-11 report about the secretive use of cellphone tracking devices by Minnesota law enforcement agencies has sparked calls for hearings from a bipartisan group of lawmakers, forced two prominent political candidates to publicly revisit past positions on the controversial technology, and outraged open government advocates.
But while reporter Blake McCoy’s splashy story posed many pertinent questions, one relevant query was left out: Given the national backlash over the federal government’s mass surveillance programs, why did it take so long for anyone to raise a ruckus about similar practices that have been employed in Minnesota for nearly a decade?
As it turns out, Rich Neumeister — a “citizen lobbyist” from St. Paul with a passionate interest in personal privacy, government transparency and public policy — had been following the issue since 2010, when he first learned that the Hennepin County Sheriff’s Department wanted to acquire a cell phone tracker. Since September, Neumeister has been sending reams of data practice requests to law enforcement agencies across the state, seeking a broad array of information about “phone sniffers” in Minnesota, including the legal protocols for their use and any evidence of their efficacy in solving crimes.
Two agencies — the Hennepin County Sheriff’s Department and the Bureau of Criminal Apprehension — acknowledged that they possessed such devices but declined to provide answers to most other questions under the security information and trade secret exemptions to the Data Practices Act, the Minnesota law that created the presumption that government information is public.
While Hennepin County ultimately provided Neumeister with contract information for its phone tracker — a portable device called a KingFish, obtained from the Florida-based Harris Corp. through a Homeland Security grant — the BCA took a harder line. Aside from disclosing the costs (nearly $750,000 spent since 2005), the BCA refused to provide any other details. In a letter responding to Neumeister, E. Joseph Newton, the general counsel at the Department of Public Safety (the BCA’s parent agency) stated that revealing such specifics could jeopardize “ongoing and future criminal investigations.”
“Basically, the BCA says, ‘We have a cellular exploitation device but we’re not going to tell you anything else, not even the name of the company we bought it from,” said Neumeister, who chronicles his research on his blog, opensecretsmn.blogspot.com. “In my 30 years of making data requests, this is the worst — excuse me — bovine excrement I’ve ever gotten from an agency.”
Hearings slated for January
In the wake of the KARE report, four lawmakers — Rep. John Lesch, DFL-St. Paul; Rep. Mary Liz Holberg, R-Lakeville; Sen. Scott Dibble, DFL-Minneapolis; and Sen. Sean Nienow, R-Cambridge — sent a letter to the BCA, requesting more information on the agency’s use of phone trackers. Lesch, who chairs the House Civil Law Committee, said he plans to hold hearings in late January that will address both phone trackers and “any other technologies” that raise similar issues about citizen privacy and surveillance.
But what happens if the BCA sticks to the position that any revelations about how it uses the device — or even disclosing the name of the manufacturer — would compromise security or trade secrets?
“We have the option of subpoena. If they refuse to answer the questions, we can pass a law to prohibit the use of the devices,” said Lesch. “I don’t know if that will be the answer. The Legislature cannot make a determination without all the information.”
“These hearings are not necessary because law enforcement did something wrong,” he added. “This is a fundamental oversight function of the Legislature.”
Still, Lesch said, KingFish and other warrantless surveillance practices pose important constitutional questions that are not answered by assertions that the devices are valuable in responding to kidnappings and other emergencies.
“They could solve even more crimes if they simply micro-chipped everybody,” Lesch observed. “But that’s not how we operate in a free republic. There is a lot of great technology out there. It’s our job as a Legislature to balance that against constitutional interests.”
Nationally, the constitutional issues surrounding such high tech snooping remain unresolved, with plenty of conflicting rulings. Earlier this year, the U.S. Supreme Court refused to hear the appeal of a drug courier who was convicted after law enforcement tracked his movements through cell phone towers without first obtaining a warrant. Conversely, two years ago the same court found that the placement of a GPS tracking device on a suspect’s vehicle, absent a warrant, was a violation of the constitutional prohibition against unreasonable search.
The politics around the issue are just as tangled as the legal implications. Last spring, after controversy erupted over another tracking technique — the use of automated license plate scanners by Minnesota police departments — lawmakers failed to reach a consensus on how to regulate the technology before the session ended.
But in the wake of the Edward Snowden leaks concerning the federal government’s extensive surveillance programs, the public interest and the political dynamics have shifted, said Lesch. He also noted that the issue does not divide on clear partisan lines, making the “strange bedfollow” alliances more probable (and, he said, making the issue more fun to work on).
In the wake of KARE’s story, two prominent Republican political candidates issued statements about KingFish and their past positions on the use of trackers. State Sen. Julianne Ortman, R-Chanhassen, who has made opposition to the NSA’s surveillance programs a theme of her campaign for the U.S. Senate but who also worked in the command staff of the Hennepin County Sheriff’s Department, defended the device as a practical tool to help police locate criminals or victims when time is of the essence.
In a Facebook post, Ortman said the KingFish could not intercept calls or texts and wrote that “it is ridiculous for anyone to suggest that this is in any way analogous to the executive branch overreach and the constitutional violations by the NSA.”
Conversely, Jeff Johnson, a Hennepin County Commissioner and current gubernatorial candidate, wrote that disclosures about the NSA snooping — as well as “widespread unauthorized and unwarranted access of individual data in state databases” — caused him to regret his past support for KingFish.
A more secretive state government?
In an interview, Don Gemberling, the former longtime director of the state’s Information Policy Analysis Division and an expert on the Data Practices Act, bluntly criticized the BCA’s use of the security information exemption in refusing to provide details about its phone tracking program.
“To me, that’s just ridiculous. You can’t say who you wrote the check to?” said Gemberling. “The test for security information is that there has to be some kind of threat from releasing the data. I cannot think of what threats exist here, especially considering that Hennepin County has already made that same information available to Rich [Neumeister].”
But Gemberling said the use of the exemption has become increasingly common in state government. Some types of data regarded as public for 30 years are now routinely classified non-public under this provision, he said.
He attributed the trend in part to the post-9/11 political climate but also to a modern business reality: the emaciation of local journalism outlets. As newsrooms have shrunk and budgets tightened in recent years, newspapers and TV stations are much less inclined to sue the government for access to information than their fatter predecessors of yesteryear.
After the Data Practices Act became law in 1979, Gemberling said, news organizations routinely pursued cases in court, editorialists vented against secrecy, and open government champions such as former St. Paul Pioneer Press editor John Finnegan made themselves heard at the Capitol. Over time, Gemberling said, the media’s less aggressive posture has not gone unnoticed.
“When the government lawyers get together and talk about the real world, they tell each other, ‘We told the media to go to hell and we never heard from them again,’” Gemberling added. “That’s the ongoing problem with the Data Practices Act. If you want to enforce it, you’ve got to sue somebody.”