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Lawmakers split over putting data privacy in the Minnesota Constitution

Tuesday, February 3, 2015
  • Article by: ABBY SIMONS , Star Tribune 
  • Updated: February 3, 2015 - 10:19 PM

Lawmakers are divided over whether such an amendment is necessary or redundant.

A proposed Minnesota constitutional amendment would protect text messages, e-mails and other electronic data from warrantless searches, but the initiative faces hurdles from some lawmakers who say such communications are already protected under current law.

The heart of the amendment is just four words, proposing to add “electronic communications and data” to Section 10 of the state Constitution, which guarantees “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.” If approved, the amendment would be placed on the 2016 November election ballot. A bipartisan group of House and Senate authors say the measure updates the constitution to fast-evolving 21st century technology, particularly when it comes to law enforcement surveillance tools like cellphone trackers and license plate readers. Both have received scrutiny by the Legislature.

The bill’s chief House author, Rep. Peggy Scott, R-Andover, said the amendment also reflects the changing way society stores data, replacing file cabinets with hard drives.

“I believe this bill and amendment are needed to at the very least protect the private communication and data that we all have on our electronic devices,” Scott said. “Think of conversations you’ve had online or texting. How many of us have income or other sensitive information on our computers? Banking information, budget information detailing where we have shopped, what charities we give to or what doctor appointments we go to?”

Although the bill cleared its first House committee Tuesday, it faces a more significant hurdle in the Senate, where one instrumental leader says data privacy questions have already been resolved by the courts. Sen. Ron Latz, DFL-St. Louis Park, who chairs the Senate Judiciary Committee, refused to give the bill a hearing last month, saying he prefers to avoid legislating by constitutional amendment when he believes electronic data is already protected.

“I never shut the door completely on things, but my inclination right now is we have enough heavy lifting on our plate this legislative session in terms of real policy changes,” Latz said. “To take our limited time that we have on something which, from my perspective, is unnecessary and redundant would not be a wise use of our public resources.

Sen. Branden Petersen, R-Andover, who authored the blocked Senate bill, said he hopes the bill will gain fresh traction with more House support and the backing of his co-authors, creating pressure for Latz’s committee to hear the bill “whether he personally supports it or not.” The rules when it come to who can access electronic data are not cut-and-dried, Petersen argued.

“It’s necessary because of the inconsistency in rulings and the lack of a comprehensive ruling at the U.S. Supreme Court,” Petersen said. “State agencies in Minnesota are operating outside of what they can do, and this provides a lot more clarity in the event that there is a broader challenge brought before the state courts.”

Missouri had similar debate

A similar schism over whether the amendment is necessary was visible at Tuesday’s House Civil Law and Data Practices Committee, which passed the bill on a divided voice vote.

Benjamin Feist, legislative director for the American Civil Liberties Union of Minnesota, told the committee that Minnesota’s constitution is similar to the Fourth Amendment to the U.S. Constitution, but that the amendment would offer even stronger protections. Other states have done the same, including Missouri, which passed a similar amendment with support from 75 percent of voters. It’s a safeguard, Feist said, “until the courts get around to getting this right.”

He argued that the high court’s decisions pertaining to data privacy are limited in scope, such as searches of a cellphone during an arrest, or GPS tracking of a vehicle.

“We don’t know what else would apply at this point,” Feist said.

Rep. Dave Pinto, DFL-St. Paul, pointed out that the cases Feist referenced are ones where the Supreme Court said a warrant is necessary to search electronic data.

“I get concerned about amending our constitution to clarify things that the courts are already doing,” he said. “I think we need to be careful about that sort of thing.”

Abby Simons • 651-925-5043