The return of the Criminal Intelligence Data bill

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On February 23rd, Minnesota state representatives Cornish, Kelly, and Lesch introduced HF 2470 – a revised version of the “Criminal Intelligence Data” bill that was last introduced during the 2009 legislative session.

The bill would create a new category of records within the Minnesota Data Practices Act known as “criminal intelligence data.” As defined by the bill, this information would be data that a “law enforcement agency uses to anticipate, prevent, or monitor possible criminal or terrorist activity by a person.” The bill would exclude so-called “association data” from this definition, unless the association data had a direct relationship to criminal or terrorist activities. HR 2470 defines “association data” as data that “document the associations or activities of a person and that are about that person’s political, religious, or social views.”

Data classification

For a period of one year, criminal intelligence data would be classified as “confidential data on individuals or protected nonpublic data” – essentially, a very restrictive data classification. After one year, the data would then change to a somewhat lower level of classification – “private data on individuals or nonpublic data” – unless certain criteria were met. Such criteria would include whether allegations undergirding the data were supported by a criminal predicate.

Data that had changed to the lower level of classification would generally be destroyed after three years. Other data could be maintained until it fell into the lower-level classification.

Criminal intelligence data could be shared with any law enforcement agency, if that agency demonstrated a criminal predicate related to the data request. A dissemination record would need to be kept by the agency that originally gathered the data.

Proponents’ arguments

In the past, proponents of the criminal intelligence bill have justified such legislation as a way to prevent law enforcement information from being obtained by terrorists via data practices requests. Under the current Data Practices Act, many police incident reports are available as public data, unless they are part of active criminal investigations. Bill proponents have raised concerns that requests could be made for such reports in order to glean details about police surveillance of particular activities or areas.

2011 CIR story

In September of 2011, the Center For Investigative Reporting (CIR) released a story on incident reports gathered by Mall of America (MOA) security guards, and their subsequent dissemination to the Bloomington Police Department and other law enforcement agencies. CIR obtained the documents through open record requests. We wrote about the documents that were uncovered here.

The CIR article suggested that some MOA security reports were being filed on thin pretexts – such as reports compiled about a man writing in a notebook at the MOA food court. The story raised the prospect of such reports casting long-term suspicion over innocent people, after being entered into the interlocking databases of the nation’s police and intelligence agencies.

Opponents of HF 2470 have raised concerns that some of the practices described in the CIR article could continue – except without any public scrutiny – due to the fact that incident reports could be labeled as “criminal intelligence data” and then be kept from the public.

Interestingly, the Department of Public Safety (DPS) has already started to do something similar to this, via an existing provision of the Minnesota Data Practices Act. In March of 2011, DPS Commissioner Ramona Dohman signed an order that classified law enforcement data shared with DPS’s intelligence fusion center as “security information.” Security information is an existing, nonpublic data classification that extends to data that could lead to theft, trespass, or physical injury if disclosed.

SF 2725 work group, and bill modifications

After the 2009 version of the criminal intelligence bill met with opposition, the legislature passed SF 2725, which created a task force to review the legislation and suggest possible changes. The SF 2725 task force produced a list of recommendations and two companion supplements – a law enforcement supplement, and a supplement authored by Chuck Samuelson of the ACLU and Robert Sykora from the Minnesota Board of Public Defense.

The recently introduced version of the criminal intelligence bill contains many new sections – some of which can be read to address concerns raised by members of the SF 2725 task force. There are, for instance, audit-related provisions in the bill, as well as restrictions on the use of intelligence data.

Stauts

On February 23rd, HF 2470 was read once, and was referred to the Committee on Public Safety and Crime Prevention Policy and Finance. On February 27th, Representative Sandra Peterson was added as an author.

Senators Ingebrigtsen and Harrington introduced a Senate version (SF1937) on February 20th.