Minnesota Lawyer
Rep. John Lesch, chairman of the House Civil Law Committee, acknowledged the reluctance of law enforcement officials to publicly discuss details about their use of cellphone trackers and license plate readers. “I know this is awkward, but there is no other way around it,” he said during his opening remarks at a hearing Tuesday. (Staff photo: Peter Bartz-Gallagher)
Cellphone tracking is focus of House hearing
Amid mounting concern over the use of high-tech surveillance tools such as cellphone trackers and automated license plate readers, a procession of privacy experts and top law enforcement officials testified before a packed crowd at the meeting of the House of Representatives Civil Law Committee on Tuesday.
Rep. John Lesch, the committee chair, called for the hearing in the wake of a recent report about the acquisition of cellphone trackers by two Minnesota law enforcement agencies, the Bureau of Criminal Apprehension and the Hennepin County Sheriff’s Department. The small hand-held devices — known by such names as “Stingray” and “Kingfish” — can track the location of cellphones without assistance from the phone providers.
In his opening remarks, Lesch acknowledged the reluctance of law enforcement to discuss the particulars about the devices and their use in a public forum. “I know this is awkward, but there is no other way around it,” said Lesch.
The BCA acquired its first tracker in 2005 but few outside law enforcement circles — including legislators — knew about it. Both the BCA and the Hennepin County Sheriff’s Department have brushed aside citizen inquiries about the devices, citing security and trade-secret exemptions to the Data Practices Act.
Mona Dohman, commissioner of the Department of Public Safety (the parent agency of the BCA), testified that the trackers “are critical in protecting people and saving lives.” In her written response to legislators, Dohman listed six instances in which the devices helped investigators solve serious crimes, including murders and abductions.
Data retention an issue
Because the trackers essentially mimic cellphone towers, they collect location information on every cellphone in the vicinity, not just the target of the investigation. According to Dohman, BCA agents “only search for the target phone and do not record or retain any data related to other phones on the network.”
Noting that the BCA also uses the device to assist other law enforcement agencies, lawmakers pressed for further details about how the so-called “cell tower dumps” are managed — and whether that data might be downloaded and stored.
“It’s difficult for us to make policy decisions without adequate information,” said Rep. Ryan Winkler. “I trust you. But do we have anything more than that, given this technology is available to more than just your agency?”
Catherine Crump, a staff attorney with the American Civil Liberties Union, told lawmakers that surveillance tools such as Kingfish and Stingray — once the sole province of the feds — have proliferated among state and local law enforcement agencies because the technology “is cheaper than ever before.”
Along with cellphone trackers, Crump pointed to other surveillance tools that pose similar threats to privacy: automated license plate readers (which are already in relatively wide use in the Twin Cities area and the subject of a minor uproar at the Legislature last year), traditional GPS trackers (which are affixed to vehicles but, owing to a recent Supreme Court decision, require a search warrant), and drones (which are not yet employed by Minnesota law enforcement but are likely on their way).
Given the pace of technological change, Crump said, new tools will continue to emerge.
“When you are considering legislation, it’s important to think not just about the state of technology today, but where technology is headed,” Crump said. “Today, there are maybe a dozen automated license plate readers in a city. But one can easily imagine a reader at every stoplight and that needs to be taken into account.”
Legal standards lag technology
Crump also urged lawmakers to resist the impulse to cede the constitutional issues to the courts. “It will take the Supreme Court many years, if not decades, to resolve these issues,” Crump said. Still, the Legislature could establish its own threshold and mandate that Minnesota police obtain a probable cause warrant before employing a cellphone tracker, she said, with exceptions made for time-sensitive circumstances such as abductions.
Her remarks struck a sympathetic chord with Rep. Mary Liz Holberg. “It’s very obvious that Minnesota is way behind the curve in implementing policies on these issues,” said Holberg, who last year authored a bill that would have barred police from retaining information collected by license plate readers that is not immediately connected to an active case.
St. Paul Police Chief Tom Smith, whose department has 10 such devices mounted on patrol cars, said he welcomed the discussion and that “there should be strict guidelines in place” for the retention of the information. Smith said that the readers can capture as many as 1,800 images a minute, marking a dramatic improvement from the low-tech tactics of the past. In 2012, the readers helped the department solve two homicides, according to Smith.
Minneapolis Police Chief Janee Harteau said her department uses both mobile and fixed automated plate readers. Harteau said the devices are an effective tool but also acknowledged they raise legitimate privacy concerns. In recognition of that, Harteau said the department purges the data after 90 days.
“Why pick 90 days? Why not 30 days or a year,” asked Rep. Tina Liebling.
Don Gemberling, the former director of the state’s Information Policy Analysis Division, urged lawmakers to create a commission on the lines of the federal Privacy and Civil Liberties Oversight Board. That agency has been in the national news because of its recent recommendation that the NSA be forced to discontinue its massive phone surveillance program.
“Somebody finally established a privacy and civil liberties board within the government. That’s the kind of thing I think you should do,” said Gemberling. Gemberling closed his remarks with a reference to a famous dissent by Supreme Court Justice Louis Brandeis in a warrantless wire tap case from 1928. “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent,” Brandeis wrote.
Lesch said he expects the committee will revisit the issues in the coming session. Lesch added he still wanted to hear from Hennepin County Sheriff Rich Stanek, who did not attend the hearing. Noting that the sheriff’s department is one of just two law agencies in the state that possess cellphone trackers, Lesch called the dearth of information about that department’s practices “a glaring omission” and he hinted the committee might “compel” testimony in the future.
