House, Senate differ on phone-tracking bills

When it comes to regulating cellphone tracking devices, it now seems nearly everyone at the Capitol agrees that some sort of action is warranted.

Edward Snowden may deserve some credit for that interest, but a more mundane explanation might suffice: The Minnesota statute that is most relevant to such surveillance practices was drafted a quarter century ago, long before suitcase-sized gadgets with names like Kingfish and Stingray emerged as favored specialty items in the police tool kit.

Even the Bureau of Criminal Apprehension — one of two police agencies in the state known to possess such “cellular exploitation devices” — says it is amenable to an overhaul of the law.

That’s a change in tone for the state’s top police agency, which has used the devices since 2005 but refused to disclose virtually any details — down to the name of the manufacturer — until lawmakers began holding hearings and proposing legislation early this year.

Two bills have since cleared key committees in the House and Senate and may ultimately be destined for conference committee, where the wrangling would likely focus on one critical difference: Will police be required to obtain a search warrant before deploying a Kingfish, Stingray or other such device in a criminal investigation?

“In my view, the bill isn’t worth passing without the warrant requirement. I wouldn’t even vote for it if it were presented to me,” said Sen. Branden Petersen, R-Andover, the lead author in the Senate. “I think it would be worse to codify the un-codified status quo than not do anything.”

Petersen’s bill, which passed out of the Judiciary Committee on a unanimous voice vote, contains that search warrant mandate. Two House bills originally contained the same requirement but ran into opposition.

“Honestly, we had law enforcement pressing very strongly against any kind of movement,” said Rep. John Lesch, DFL-St. Paul, the author of one of the bills. “I heard from several individuals who said they wanted us to work it out with law enforcement. When that happened, there was no incentive for law enforcement to come to the table.”

With deadlines fast approaching last month, the House Judiciary Finance and Policy Committee took up the other bill only after its author, Rep. Joe Atkins, DFL-Inver Grove Heights, agreed to remove the search warrant language.

The change came at the urging of the BCA and other law enforcement groups, according to Atkins. Atkins said the amendment — which requires police establish probable cause and obtain a court order — is functionally similar to a search warrant.

“We literally took the standard of review that’s applicable in search warrant cases and applied that standard to the court order,” said Atkins.

Privacy advocates prefer Senate approach

But Petersen and privacy advocates like Teresa Nelson contend there are important differences.

“There is no definition that I’ve been able to find that says what a probable cause court order is. But we do have statutory and constitutional case law that sets forth the requirements for a search warrant,” said Nelson, the legal director of the American Civil Liberties Union of Minnesota.

Nelson said a strict search warrant requirement could benefit law enforcement in the long run, noting that judges in other states have ruled against police who used trackers without first obtaining warrants.

“I think there is a good possibility that Minnesota courts would find even greater protections in our state constitution,” Nelson said. “In my mind, why not have a warrant requirement now? Why put criminal investigations in jeopardy?”

In testimony before the Senate Judiciary Committee, Drew Evans, the assistant superintendent of the BCA, said the agency is “always evaluating these new technologies in terms of the Fourth Amendment.”

The BCA currently obtains court orders under a law governing tap and trace devices and pen registers, technologies designed to let police track numbers dialed and received from a specific telephone but not eavesdrop.

Under that statute, police are required to demonstrate “relevance to an ongoing criminal investigation,” a lesser standard than probable cause. Evans told lawmakers that an updated version of that statute — with the beefed-up probable cause clause — is preferable to imposing a standard search warrant requirement.

Evans, who cited “practical concerns” in his testimony, did not respond to inquiries seeking further elaboration.

Technology augurs for changing law

In a letter to the Senate Judiciary Committee, Rich Neumeister, a longtime privacy advocate and Capitol fixture, opposed that approach, writing that law enforcement is “increasingly taking advantage of these outdated laws, written before GPS, apps and other location technologies even existed to access sensitive location data without adequate judicial oversight.”

Senate sponsor Petersen said he was not swayed by Evans’ “soft arguments.”

“The argument from law enforcement is that a probable cause order does everything a search warrant does. If it’s practically the same thing, then why are they so leery about a search warrant requirement?” Petersen said.

Petersen said he didn’t want to impugn police motives. At the same time, he expressed frustration over the reluctance of law enforcement to provide details about the Kingfish. “These things were purchased and used for years before there was any public scrutiny,” he said.

“Time and time again, they don’t offer up information,” Petersen added. “They provide it when it’s required or when someone stumbles upon it.”

Despite several hearings and many hours of testimony, one basic question about the BCA’s cellphone trackers has remained unanswered: How many times has the agency used the device?

“I don’t have a hard number. I’ve heard anywhere from the dozens to the hundreds,” Petersen said. “As with many other things, law enforcement hasn’t been inclined to answer the question, which leads me to believe the answer is, ‘A lot.’”

In a response to an inquiry from Politics in Minnesota, Jill Oliveira, a spokesperson for the Department of Public Safety, said the BCA uses the devices about 100 times a year.