Minnesota Lawyer
Laws covering law enforcement’s use of drone aircraft, e-mail and location-tracking search warrants were all folded into a 13-page omnibus privacy bill that passed out of committee and onto the Senate floor last week.
Senate File 1263 pulls in a number of privacy-related bills heard earlier in the session, several of which go beyond the three ACLU-priority measures already mentioned. The omnibus passed Senate Judiciary with a unanimous voice vote on March 29.
“We’re very happy that three of our priority issues made it into the omnibus,” said Ben Feist, legislative director for the Minnesota ACLU.
The 18-section omnibus incorporates seven previously heard Senate bills covering various areas of privacy and data practices law. Here we detail the omnibus’ key provisions.
Senate File 1430
This bill, from Sen. Scott Dibble, DFL-Minneapolis, covers law enforcement’s use of unmanned aerial vehicles, or drones. At root, the measure requires law enforcement to obtain a search warrant before using drone aircraft as an investigative tool.
The measure includes a number of exceptions to that rule. Police could use drones to deal with emergencies, or to patrol public events where safety is at risk, or for natural or human-caused disasters like terrorist attacks.
The bill places narrow limits on data that may be collected by unmanned aircraft and prohibits coupling them with facial recognition or biometric-matching technologies, unless authorized by the courts.
It also classifies drone-collected surveillance data as private or nonpublic and prohibits the introduction of evidence collected in violation of the statute in criminal, civil or administrative law cases.
The bill further authorizes a civil cause of action for citizens subjected to drone surveillance in violation of the new statute.
Up to now, Dibble said in an interview, use of drones by law enforcement has gone completely unregulated. “There are no standards, there are no regulations, nothing,” he said.
Both Dibble and the ACLU’s Feist said they are unaware of instances where law enforcement has used drones in ways that would violate the statute. But part of the reason for that, Feist said, is that drones are a “new, secretive technology” being implemented by law enforcement agencies.
“Most departments are not really broadcasting out to the community that they even have these tools right now,” Feist said. What is known, he said, is that law enforcement agencies are investing in the technology and in the training needed to use it.
“So I think they are being used,” he said. “And before these programs get even further off the ground, it’s really time that we make sure we have these reasonable regulations in place.”
Senate File 1431
Another Dibble bill, this one is titled the Minnesota Electronic Communications Privacy Act. As folded into the omnibus, the bill now excludes several provisions that were earlier debated in committee, which lacked consensus.
“However, one issue that we could all agree to was on the topic of requiring a warrant to access emails older than 180 days,” said Senate Judiciary chair Warren Limmer, R-Maple Grove, who presented the omnibus on March 29. “And that is what this language addresses.”
Feist said that under current law, a warrant is not needed for police to peek in on people’s e-mail. That’s the product of a federal law adopted by the Legislature in the 1970s—essentially a dead letter law. That statute deals with abandoned mail left sitting, for instance, in a post office box.
“The concept is that if you left something in a post office box for more than six months, you must not have wanted it,” Feist said. But that expectation doesn’t apply to email, which many people store for years because they want continued access to it.
“We think that should definitely require a warrant,” Feist said.
For this provision and several others scattered throughout the omnibus, existing statutory language that regulates other law enforcement technologies—automated license plate readers, cell phone tracking warrants and body cameras, for instance—were imported into the omnibus, Limmer said.
“We tried to replicate some of the same concepts that make sense in this context,” he said.
That’s got privacy advocate Rich Neumeister a little bit bothered. He notes that in several places—including Dibble’s email bill—imported language orders the unsealing of search warrants after 90 days. But there is a bothersome hedge, as Neumeister sees it.
The passage reads: “The prosecutor may request that the search warrant, supporting affidavits and any order granting the request not be filed. An order must be issued granting the question in whole or in part if—from affidavits, sworn testimony or other evidence—the court finds reasonable grounds to believe that filing the warrant may cause the search or a related search to be unsuccessful, create a substantial risk of injury or severely hamper an ongoing investigation.”
Neumeister said he has seen real-world situations where that language has allowed law-enforcement’s use of the StingRay cell phone surveillance device to go unreported.
“Basically, the prosecutor can say, ‘I want this stuff to be sealed,’” Neumeister said. “But when you look at the language, it’s not clear for how long.”
He said he would visit with Dibble and the ACLU to revisit the passage, possibly when it moves into conference committee.
Senate File 1263
Before Limmer reused this file number for his omnibus bill, SF 1263 was a bill from Sen. Jim Abeler, R-Anoka, which clarifies laws that govern tracking warrants. Its provisions are now part of the larger bill.
Similar to Dibble’s Electronic Communications Act, the Abeler measure clarifies the terms under which location-tracking warrants involving pen registers, trap-and-trace devices and mobile tracking devices get placed under seal.
It says the warrant must be unsealed after 90 days and the subject of the warrant notified in accordance with Minnesota Statutes 626A.42.
“It’s kind of technical,” Feist said, “but it’s a good fix to an issue we had where there was confusion with the courts and law enforcement on how the notice should come out.”
Section 626A.42 is the same section of statute that Neumeister said concerns him, because it allows prosecutors to request a seal of indeterminate duration on warrant-filing requests.
Other provisions
The omnibus also includes Senate File 802, Limmer’s bill to extend the life of the Legislative Commission on Data Practices to the year 2026. That commission is otherwise scheduled to sunset in June 2019.
Senate File 1710, also a Limmer bill, pertains to ignition interlock devices, and Limmer said it remains a work in progress. Essentially, the language in the omnibus allows interlock device manufacturers to continue selling wireless enabled devices in Minnesota. However, vendors may not sell or distribute participants’ location information. And they must write that prohibition into their service provider contracts. Limmer said the Department of Public Safety and “some providers” agree to those terms.
Senate File 468 from Sen. Carla Nelson, R-Rochester, classifies as nonpublic data collected by any government entity that runs rideshare programs. Right now, only data collected by MnDOT or the Metropolitan Council from rideshare programs are classified as private.
Senate File 2394, a bill from Sen. Ron Latz, DFL-St. Louis Park, authorizes the Department of Human Rights to share its private or non-public investigative data with both sides when a charging party files a case in district court.
“When cases are moved from the department to court,” Limmer said, “this bill allows for easier access by parties to their own information. This eliminates the extra discovery step for the two parties and saves the department work and probably some money as well.”
The House Judiciary committee passed its own version of an omnibus privacy and data practices bill on March 14. That bill has awaits its third reading and a vote on the House floor.
