Despite change in Minn. law, cellphone tracking warrants still under wraps

Minnesota law enforcement agencies continue to keep the use of controversial cellphone tracking devices secret more than two years after the Legislature passed a bill demanding that warrants authorizing their use be made public.

That bill became state law after public outcry pushed lawmakers to require that police warrants seeking to use KingFish and StingRay devices be unsealed after 90 days, with few exceptions. The Legislature also required that targets of the warrants be notified after the need for the surveillance had ended.

The devices allow police to track cellphone locations and obtain historical call and text data, according to a congressional report released last week. They have the capability of not only getting that information from the target, but from surrounding cellphones as well.

However, a report to the Legislature released in November by the Minnesota Judicial Branch shows that none of those warrants has ever been made public and that targets are not being notified.

Why that's happening is unclear.

"There's no clear authority I've found as to who has the final say," said Shawn Webb, a supervising attorney for the state public defender's office who has studied the devices for years. "I haven't been able to get a clear answer as to who's making the actual call."

As the report was being prepared, Judicial Branch spokesman Beau Berentson said district courts, which have the authority to release the warrants, found that the 2014 law conflicted with one passed in the late 1980s that required warrants to use mobile tracking technology to be sealed.

Though those laws primarily applied to landline phones and vehicle trackers, the Judicial Branch report said they found that the StingRay warrant applications invoked parts of another law that required the records be sealed.

And because none of the warrants has been unsealed, surveillance targets have never been notified, Berentson said.

A legislator who was instrumental in passing the bill, Rep. John Lesch, DFL-St. Paul, blames law enforcement for keeping the information from the public. He believes that when police apply for a warrant, they intentionally file the application under the statutes that apply to older technology, requiring the information to be sealed.

"They are looking to sidestep a clear legislative directive," Lesch said. "It treads very close to the line of law enforcement being law breakers."

A spokeswoman for the Minnesota Bureau of Criminal Apprehension, Jill Oliveira, denied that accusation. She said the agency is filing for the warrants under the law created by the Legislature and that it is up to the courts to make them public.

"In most cases, we don't ask for it to be sealed," she said.

Oliveira said in the past two years the BCA has applied for 18 tracking warrants, all of them under the new law passed by the Legislature.

According to the Judicial Branch report, Minnesota judges issued 1,820 total search warrants for "wire, electronic or oral communications" from 2014-15, including 1,202 for all types of phone communication.

However, the report does not say how many of those warrants were for KingFish or StingRay devices, and how many of the total warrants were made public.

Federal and state law enforcement agencies long have worked to keep information about StingRay and KingFish devices secret. The devices initially were developed by a Florida-based company for military and intelligence use, but by 2015 the American Civil Liberties Union identified 68 law agencies in 23 states that owned StingRays.

They work by mimicking a cellphone tower, tricking a phone to the surveillance device. According to documents obtained by the ACLU, some of the devices can listen in on conversations.

Use of the devices became the focus of a national debate, pitting law enforcement's ability to track criminals against an individual's right to privacy. At least three Minnesota agencies have used a StingRay, said Webb of the state public defender's office: the Bureau of Criminal Apprehension, the State Patrol and the Hennepin County Sheriff's Office.

The BCA says it has never used a device to listen in on phone conversations.

The Hennepin County Sheriff's Office obtained a KingFish in the early part of the decade, but a spokesman said the office no longer uses the device, calling the technology outdated.

The BCA and Hennepin County Sheriff's Office have resisted attempts to obtain more information about the devices.

In December 2014, the BCA agreed to terms set by the FBI to resist any attempts by the public to gain information about the StingRays.

In a letter sent to the Star Tribune that year, BCA assistant superintendent Drew Evans wrote that revealing information about the devices "would not only endanger the lives and physical safety of law enforcement officers and other individuals, but also adversely impact criminal investigations."

As the Legislature considered the 2014 bill, one of its authors, Rep. Peggy Scott, said there was a consensus that information on its use should be made public. Both bodies overwhelmingly approved the bill with only one senator voting against it.

Scott said no one from either the BCA or the courts told her that the law would conflict with other statutes. And no one had since told her that the warrants were not being released until she spoke with the Star Tribune.

"This is the first I'm hearing of this," said Scott, a Republican from Andover. "If [the courts] paid attention to any legislative intent, they should have known we wanted them public.

"I don't think there was any question about what we intended," Lesch added.

Scott said she will seek to hold hearings in the next session and possibly try to pass new laws to make the warrants public.

"We need to get to the bottom of this to see why this happened and to prevent this from happening in the future," she said.

Brandon Stahl • 612-673-4626