Reporter's curiosity gets the FBI's attention

In these strange times, merely asking what the government is doing can get you a file at the FBI.

That's what I learned earlier this month, when the state Bureau of Criminal Apprehension released two documents related to the supersecret surveillance technology known as StingRay II and KingFish. Police use those devices to track the location of cellphones. Because they mimic cellphone towers, the gadgets can suck up huge amounts of information from any cellphone within range.

The potential for an invasion of privacy and the government's extraordinary attempts to keep this technology under wraps have made it a flash point in the continuing struggle between civil libertarians and law enforcement.

I'm a relative newcomer to this tussle. In June I asked the BCA for a copy of its contract with Harris Corp., the maker of the devices, and any nondisclosure agreement that went with it. The BCA said no. That information could all be withheld under provisions of the Minnesota Government Data Practices Act protecting trade secrets and information that could reveal law enforcement investigative methods.

The Star Tribune then appealed to a state agency that interprets public records disputes. That agency, the Information Policy Analysis Division, determined last month that the BCA's records could not be withheld in their entirety.

On Dec. 5 the BCA released two documents, but obscured some portions with black marker. What surprised me wasn't the contract with Harris Corp., which included a promise by the state to keep quiet about the technology. It was the nondisclosure agreement the state had signed in 2012 with the FBI.

If someone like me files a record request seeking information about the technology, "the Minnesota Bureau of Criminal Apprehension will immediately notify the FBI of any such request telephonically and in writing in order to allow sufficient time for the FBI to seek to prevent disclosure through appropriate channels."

That line sent a little chill through my stomach. At no time over the six months did anyone tell me the FBI might be involved. Was I now on some list in the J. Edgar Hoover Building in Washington because I asked for a public record in Minnesota?

The nondisclosure agreement released by the BCA was the most complete one (i.e. fewest Sharpie marks) the public has seen so far, said Nate Wessler, a staff attorney with the American Civil Liberties Union in New York. It confirms what the ACLU has already learned elsewhere: the Department of Justice will intervene to block local police and prosecutors from having to hand over any records about StingRays and KingFish.

"Who knows what they've been trying to do to help the state not comply with your request?" Wessler said.

I don't think I'm going to find that out anytime soon. But I did take the question to Christopher Allen, an FBI spokesman.

"It doesn't look like we stopped anything," Allen observed.

Allen said that for obvious reasons, the use of these cell site simulators is a "difficult topic for the FBI to discuss." The FBI, he said, "only collects and maintains information that has investigative value and relevance to a case, and such data is retained in accordance with controlling federal law and Attorney General policy."

He also referred me to court affidavits filed by Special Agent Bradley Morrison, chief of the Tracking Technology Unit based in Quantico, Va. In 2011, Morrison emphasized that the device was used in location tracking, as opposed to intercepting content, presumably text messages, contacts, e-mails, etc.

In an April 2014 affidavit, Morrison laid out the government's arguments on how every scrap of information that gets out about its tracking devices will give terrorists and other violent crooks more ways to defeat them. He also described the different laws that make it illegal to publicize this information, including the Homeland Security Act and the Arms Export Control Act.

I never imagined my record request would threaten national security.

Allen told me I have nothing to worry about, and the G-men haven't come knocking on my door. But these days, they don't have to. They can see right through it.

James Eli Shiffer is at james.shiffer@startribune.com or 612-673-4116.