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Minnesota Legislation Would Send Question of Electronic Data Privacy to Voters

The Minnesota legislature is considering a measure that would give voters the opportunity to amend their state constitution in order to bolster their privacy rights in the digital age.

Introduced by State Sen. Branden Petersen (R-Andover) on Jan. 8, Senate File 32 (SF32) would give “electronic communications and data” the same state constitutional protections as “persons, houses, papers, and effects.” This would eliminate any constitutional ambiguity surrounding electronic data and specifically bar state agencies from accessing it without a warrant in most cases.

By prohibiting state agents from “accessing” warrantless electronic data, it would make such data gathered by federal agencies such as the NSA and shared with state and local law enforcement inadmissible in state criminal proceedings. If SF32 is successfully passed through the state legislature, Minnesota voters would have a chance to vote to amend their state constitution during the 2016 general election.

The bill contains similar language to Missouri’s Amendment 9, which was passed by voters in August of 2014. It won with an overwhelming 74 percent of Missourians voting in favor of the amendment. This demonstrates that a bipartisan consensus is emerging to rebuke warrantless surveillance of electronic data and communications.

Americans shouldn’t face a forced choice between using modern technologies and protecting their privacy. SF32 would make it clear that in the same way the government must get a warrant based upon probably cause to read people’s postal mail, it also must obtain a warrant to read people’s email.

SF32 is only one of the measures that have been introduced this year to address federal threats to privacy in Minnesota. Sen. Petersen also introduced SF33, which would ban the “identity, location, or activities of an individual” from being obtained by government officials without a proper search warrant. This would prohibit Minnesota from engaging in an activity that the whistleblower and former NSA chief technical director William Binney has called the greatest threat to the constitution “since the civil war.”

These bills compliment each other nicely, and give Minnesota residents two important measures to get behind that can safeguard their privacy rights, which are under constant attack by the NSA and other rogue federal bureaucracies.

This is a problem that has been brewing for many decades. Forty years ago, even before the advent of the Internet, Sen. Frank Church warned America about the federal spy program, saying that the NSA could potentially bring about “total tyranny.” Congress had 40 years to do something to rein in the surveillance state, but failed to lift a finger. In fact, it has made things worse.

Federal courts haven’t proved much better. Judges generally defer to the Congress and the president when they justify actions as necessary due to “national security issues.” The law concerning electronic communications remains far from “settled,” and we simply cannot depend on the federal government to protect our privacy.

While state action like Minnesota’s cannot stop the NSA from collecting information illegally, it can protect people in that state from its practical effect. Along with barring state agents from engaging in illegal surveillance, it would prohibit state and local law enforcement from accessing warrantless data, even if federal courts ultimately place their seal of approval on mass surveillance. States can legally set a higher bar for privacy protection than the federal standard. This fact alone makes state actions such as SF32 and SF33 a powerful and effective tool for protecting basic privacy rights.

SF32 can be the latest domino to fall in the emerging movement to enshrine important privacy rights protections into state constitutions across the country through ballot initiatives. Every state except Delaware can amend their state constitution through a legislatively referred referendum. We have the potential to blanket the country with constitutional provisions specifically extending privacy protection to electronic information and data. This would ensure state-level respect for privacy rights and address a practical effect of federal spying, regardless of how things play out in Congress or in federal courts.

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