In the Hopper: Privacy mini-omnibus legislation advances

Editor’s note: In the Hopper is a summary of Minnesota legislation of interest to the legal community.

If it gets signed into law, its author says, a bill passed unanimously by the Senate on Monday would be the state’s first major data-privacy legislation in about six years.

Among its five policy provisions, Senate File 3072 from Judiciary Chair Warren Limmer, R-Maple Grove, regulates the police use of drone aircraft, requiring warrants for most uses but providing a number of exceptions.

The mini-omnibus bill also would require a warrant before law enforcement can search citizens’ emails that are more than 6 months old. Under current law, Limmer said, law enforcement does not need a warrant to “rifle through” those old emails.

“I think it is quite a strike and a blow for civil liberties in our state,” Limmer said of that requirement.

A third provision clarifies statute by exempting tracking warrants from the usual sealing and disclosure requirements for warrants that involve wire, electronic or oral communications. Tracking warrants, introduced into law in 2014, grant law enforcement access to location data from electronic devices like cell phones. The law generally requires that those warrants be unsealed and made public after 90 days.

However, a 2016 report from the State Court Administrator suggested there was confusion over the warrants. Most were being issued under older statutes that didn’t specify the type of device being tracked. As a result, many tracking warrants remained sealed and their subjects weren’t informed that they were under surveillance.

“We have a right to know—unless there is a good reason for us not to know—that the government has been snooping in our personal affairs,” said Sen. Scott Dibble, DFL-Minneapolis, a supporter of the bill who was the original author of some of its provisions. “That’s just a basic premise of trying to curtail the overreach and power of government.”

The bill also extends tracking-warrant rules, for the first time, to social media communications. That part of the bill requires law enforcement agencies to obtain warrants and follow reporting requirements for social media, just as for electronic devices, Limmer said.

But law enforcement benefits, too. The bill ensures that when crooks try to use social media platforms like Snapchat or digital gaming systems to coordinate their schemes, investigators can pursue them using statutorily authorized warrants, so they don’t remain beyond law enforcement’s reach.

“So it addresses both sides,” said Dibble, who was interviewed Tuesday. “It basically clarifies for the social-media companies that they can disclose tracking information when it is presented to them. And it requires that warrant. The law was kind of silent on that.”

The fifth provision—which falls outside the main theme of privacy—strips the Legislature of its statutory power to require the Minnesota Court of Appeals to treat certain opinions as unpublished and non-precedential.

In a 2016 Bench & Bar article, state Supreme Court Associate Justice David Lillehaug blasted the statute giving that authority to legislators as a violation of the Minnesota Constitution’s separation of powers clause.

Speaking on the floor Monday, Limmer agreed. “I think it is vitally important that we recognize the separation of powers between the legislative branch and the executive branch,” he said. “In this case, we’re going to allow the Supreme Court to make the decision.”

Sen. Nick Frentz, DFL-North Mankato, a practicing attorney, spoke on the floor Monday in support of the provision. “If you are practicing in appellate law, this is significant,” he said. “For those of us practicing lawyers out there, it’s a positive change.” The provision was supported by the Minnesota State Bar Association.

Speaking on the floor Monday, Dibble told senators that the drone-aircraft provision, which he authored, resulted from long debate and compromise between stakeholders. In the end, groups including ACLU of Minnesota, the Minnesota Coalition on Government Information, state police chiefs and sheriffs associations and the Association of Minnesota Counties were among its supporters.

While the bill requires search warrants for use of drones in investigations and requires data captured by them to be deleted—usually—after seven days, it also carves out various exceptions.

It allows police to deploy drones in aftermath of emergencies, for instance, and to conduct threat assessments and training. The unmanned aircraft also can be used to monitor crowds at events where terrorism is feared.

But the bill flatly prohibits use of facial recognition technology with drones and bars them from use in monitoring political protests. Nor can law enforcement mount weapons on them.

“Everyone hates this bill a little bit and loves it a little bit,” Dibble said. “So I think we are probably in the right place.”

SF 3072 bill passed the Senate by a 66-0 vote. The Senate intends to pass the proposal over to the House for consideration, but it is unclear whether the House will immediately act on it.

The House was scheduled for a 6 p.m. Tuesday floor session, after this story’s deadline.

The bill was introduced on the House floor Tuesday night, where it was immediately referred to the chief clerk for comparison with House File 3012, a similarly themed bill from Rep. John Lesch, DFL-St. Paul.

While Lesch’s bill lacks most of Limmer’s provisions, the House could opt to substitute Limmer’s text for Lesch’s and place the Senate bill on the House floor for a vote. Whether that is the plan was not known as of Tuesday night.

The House is adjourned until May 7.