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Minnesota Bill Would Put Electronic Communication and Data Privacy Amendment on the Ballot

ST PAUL, Minn. (Feb. 6, 2019) – A bill introduced in the Minnesota House would give voters an opportunity to put the privacy of their “electronic communications and data” on the same level as “persons, houses, papers and effects” in the state constitution. If ultimately passed, it would also hinder the growth of the federal surveillance state.

Rep. Eric Lucero (R-Dayton) introduced House Bill 124 (HF124) on Jan. 17. If approved, voters will have the opportunity to amend  Article I, Section 10 of the Minnesota state constitution to include electronic data and communications to its prohibition from unreasonable search and seizure. The amendment would add the following text. (Changes in bold.)

The right of the people to be secure in their persons, houses, papers, and effects, and in their electronic communications and data, against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and, the person or things to be seized, and the electronic communications or data to be accessed.

The proposed amendment would go before voters in the 2020 election.

The language in HF124 is similar to Missouri Amendment 9, which passed in with an overwhelming 75 percent of the vote in 2014. A state constitutional amendment to protect “private and personal information” passed in New Hampshire last year.

As the ACLU pointed out in an article supporting the New Hampshire amendment, without protections explicitly enshrined in the state constitution, the right to electronic data privacy exists at the whims of state legislators.

“Without state constitutional protections, privacy is not the … default setting. Rather, it needs to be repeatedly established, protected, and defended by the state legislature each time a new surveillance technology or method is established, which is a common occurrence in our modern technological world. State legislators should not play an endless game of Whack-A-Mole against threats to their residents’ privacy. Relying exclusively on piecemeal statutes or search and seizure provisions written before the dawn of the internet is no way … to protect privacy.”

Practically speaking inclusion of electronic communications and data in the state’s constitutional prohibition on unreasonable searches and seizures would require that the government obtain a judicial warrant, supported by probable cause, before accessing cell phones and other electronic devices. It would also set the foundation to help prevent law enforcement from accessing private information through third parties.

IMPACT ON FEDERAL SURVEILLANCE

While a state constitutional amendment only binds state agencies and not the federal government, the amendment would also set the foundation to help protect Minnesotans from the ever-growing federal surveillance state.

Passage of the proposed amendment would set the foundation to limit state and local surveillance and minimize the amount of personal information collected and stored by state and local governments. By doing so, it would also impact federal surveillance programs that depend on state and local support.

The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE.

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.

In practice, local data collection using ALPRs, stingrays, drones and other spy technologies create the potential for the federal government to track the movement of millions of Americans, and obtain and store information on millions of Americans, including phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

In a nutshell, without state and local assistance, the feds have a much more difficult time gathering information. When the state limits surveillance and data collection, it means less information the feds can tap into. This represents a major blow to the surveillance state and a win for privacy.

PARALLEL CONSTRUCTION

By including access to “electronic communications and data” under the same warrant requirements – describing them, probable cause, and supported by oath or affirmation – as “person, houses, papers, and effects,” it would make such data gathered by federal agencies such as the NSA or FBI and shared with state and local law enforcement more likely to be inadmissible in state criminal proceedings. This protection will remain in place for Minnesotans even if federal courts ultimately put the seal of approval on warrantless data collection by the NSA and other federal agencies.

Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases “rarely involve national security issues.” Almost all of the information involves regular criminal investigations, not terror-related investigations.

In other words, not only does the NSA collect and store this data, using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.

This is “the most threatening situation to our constitutional republic since the Civil War,” Binney said.

WHAT’S NEXT

HF124 was referred to Public Safety and Criminal Justice Reform Finance and Policy Division Committee where it must pass by a majority vote before moving forward in the legislative process.