Dec. 27, 2013: Minnesota legislators challenge police collection of phone data

A device that collects and stores cellular phone users' data has Minnesota state legislators wanting to know how and when police agencies use it, and whether it's gathering information on more than just suspected bad guys.

"It's like this is turning into 1984 and the government can spy on you," said Rep. Peggy Scott, R-Andover, referencing George Orwell's classic novel about state surveillance. "My main concern is that we have laws that are keeping up with the technology out there so we are protecting private citizens' rights."

Scott, the ranking Republican on the House Civil Law Committee, is among lawmakers who intend to question agency heads about the equipment at an oversight hearing next month. The bipartisan group of legislators' concern comes in the wake of revelations of spying by the National Security Agency, and a federal judge's ruling earlier this month that the NSA's collection of phone records was probably unconstitutional.

The devices, marketed under names like the KingFish and StingRay, mimic local phone towers to capture data and location information of cellular phones in a given area. The Minnesota Bureau of Criminal Apprehension has one; so does the Hennepin County Sheriff's Office. A local FBI official declined to say whether the agency has one, and the U.S. marshals' office didn't respond to an inquiry.

Earlier this month, four lawmakers from the House and Senate sent a letter to Minnesota Department of Public Safety Commissioner Mona Dohman about the equipment, asking what kind is used, its cost, capabilities and whether a warrant is required to use it. The letter also demands examples of closed investigations where the equipment was used and "why it was felt to be necessary."

"The public's concern about the federal government's use of phone data puts additional scrutiny on similar surveillance by state and local law enforcement agencies," the letter said. "Additionally, mistrust and problems with data breaches at the state level raise concerns about who has access to this information and how long it is kept by the government."

The letter, signed by Sens. Scott Dibble, DFL-Minneapolis, and Sean Nienow, R-Cambridge, and Reps. John Lesch, DFL-St. Paul, and Mary Liz Holberg, R-Lakeville, also questions whether the devices have been used near the State Capitol, what data are kept and for how long. It's the latest privacy concern raised by other law enforcement tools such as GPS tracking and license plate readers, which also may be addressed at the oversight hearing.

"I think there's something to be said for the fact that policymakers did not have actual knowledge of this, meaning an agency or jurisdiction can get away with it for a while," said Lesch, an assistant city attorney in St. Paul. "We may have to do something about that."

Legislators' interest was piqued after open-government and privacy advocate Rich Neumeister requested information about the devices from the BCA and Hennepin County Sheriff's Office. In an October letter to Neumeister, the BCA said that it has spent more than $730,000 on the equipment since 2005 but would not provide details, contending such information could compromise ongoing and future investigations.

"In addition, any disclosure regarding the manufacturer, model, capabilities, functionality or other specifics about the equipment could be used by criminals and fugitives to defeat the technology and render the system useless," the BCA letter said.

DPS spokesman Bruce Gordon said the technology does not allow the BCA to listen to phone conversations or read text messages, and that the department will provide legislators with answers.

"We look forward to explaining why this technology is an important tool for the BCA in criminal investigations such as kidnappings, fugitive searches, Amber Alerts, and homicides," Gordon said.

Rogan's letter said the sheriff's office has an "unwritten protocol" for when it may be used, such as with the signoff of the chief deputy and a court order, which has a lower threshold than a search warrant. They've used the device 25 times, but Rogan wouldn't say how and where, citing the same investigative concerns as the BCA. Further, he said, "Harris Corporation has asserted that some of the data … requested is trade secret and has taken efforts to protect the data from disclosure."

The Harris Corp. declined to comment, referring any questions back to the Hennepin County Sheriff's Office. "Any information has got to come from them, and any restrictions on what they can say, they're going to have to comment on those as well," Harris spokesman Jim Burke said.

Hennepin County Sheriff's Office spokeswoman Jennifer Johnson declined to comment. FBI spokesman Kyle Loven refused to confirm or deny whether the agency possessed the equipment, citing "operational matters."

Sen. Bill Ingebrigtsen, R-Alexandria, said he's willing to look at the issue with an open mind, but said such devices can be a "tremendous tool" that go beyond catching suspects to locating people who may be in danger.

"I sound like a typical cop, but if you're not doing anything wrong, you don't have anything to worry about, and cops have bigger things to worry about," he said. "At the same time, I don't want rights to be stepped on."

"There's no reason why we shouldn't be able to get answers to these questions," he said. "It's not a state or national security risk. This is public information that we should be able to obtain, and if it becomes apparent we're not getting answers, things could escalate quickly. "