Minnesota Lawyer
Sen. Branden Petersen, R-Andover, looked resigned but not despairing as he stood on the Senate floor Tuesday afternoon.
The Senate had just passed a measure that would strengthen the regulation of law enforcement’s usage of cell-phone trackers — a move that Petersen applauded. But the bill lacked a key element that he and many privacy advocates had pushed for all session, and one that law enforcement had opposed.
The provision that Peterson and others had backed, which was amended out of the Senate bill on the floor Tuesday, would require law enforcement to get a search warrant before using the devices. Getting a search warrant is legally more onerous than the process police now go through to use their tracking devices, which go by names such as Kingfish and Stingray.
The House had already dropped the provision at the behest of law enforcement last month, and included a different one that lawmakers there called functionally the same. The revised House bill would require probable cause and a court order to access the information.
“It’s a dramatic increase in the standard compared to what we currently have,” DFL Rep. Joe Atkins, the author of a House proposal to provide more judicial oversight of the devices, said on Tuesday.
Privacy advocates criticize change
But privacy advocates have criticized the court order approach — Tuesday’s Senate amendment would create a “tracking warrant,” which Petersen called “similar” to the House position — for being over-broad compared to a search warrant.
“It is not the functional equivalent of a [search] warrant,” said Teresa Nelson, legal director at the ACLU of Minnesota, of the probable cause-based court order.
Nelson said one difference between a search warrant and a court order is that the amount of information available is more limited under a search warrant, even if both require similar evidentiary thresholds.
“It would be more limited,” Nelson said of the search warrant. “You wouldn’t be able to say, simply, this person committed a misdemeanor theft, [so] I get to track his location for the last two years to see what else he was doing. Whereas that would be allowed under a probable cause court order.”
Petersen said just hours before the Senate vote on Tuesday that he would likely rather vote against the bill if the search warrant language was changed. The measure had already passed on a unanimous voice vote through the Senate Judiciary Committee earlier in the session.
Without the search warrant aspect, which Petersen called “the heart of the bill,” he said: “I’m not sure this exercise is worth doing.”
But after Sen. Kari Dziedzic, DFL-Minneapolis, stood up and offered the “tracking warrant” amendment that moved the bill toward the House position, Petersen told lawmakers it was one he could get behind. After the vote, he said it was better to make a deal than to lose the bill.
“Everybody knows what my original bill was, and that’s still my preferred position, but, you know, it’s the legislative process and you do what you’ve got to do,” he said after the nearly unanimous final vote on Tuesday.
Law enforcement lobby’s clout
It was a shift that Petersen chalked up in part to the lobbying power of law enforcement. That power has been apparent this session as efforts to pass medical marijuana as well as other privacy measures have been successfully stymied by police and prosecutors. “I think it’s become apparent on issue after issue after issue that they’re a significant gatekeeper on what policies can get done,” he said.
“It was an amendment that was offered at the 11th hour,” Petersen added. “The … amendment doesn’t happen without law enforcement sort of flexing their muscle and their relationships.”
But Dziedzic said she met with law enforcement officials and others who were concerned that the search warrant language would limit the area where police could use the technology. It would be unclear, for example, whether a search warrant issued by a judge in Hennepin County could be used in Ramsey County.
“The term ‘search warrant’ doesn’t actually work,” Dziedzic said afterward, adding: “It’s finding that balance between individual rights and public safety.”
Currently, the Hennepin County Sherriff’s Office and the state Bureau of Criminal Apprehension are the main agencies known to use such technology. The BCA uses it roughly 100 times a year, according to a spokeswoman.
The BCA, which has used the technology since 2005, has also supported beefing up the statute, but resisted the search warrant requirement.
A BCA spokeswoman didn’t respond to a request asking why the agency specifically opposes the search warrant standard.
Despite the less-than-ideal outcome for him, Petersen also praised the legislation for requiring that Minnesotans be notified if their location information is accessed. He said the probable cause language represented an improvement over current state law, which only requires a “reasonable suspicion” for law enforcement to use the devices.
“The probable cause standard is still better than what we’re operating under right now,” Petersen said, “and so it was that or not move the bill.”
