By Yael Grauer
SF32 is a constitutional amendment for citizen’s right to security from unreasonable electronic communications and data searches.
It would add electronic communications and data to the list of items (“persons, homes, papers, and effects”) that Minnesota state residents are free from unreasonable search and seizure of.
Although the amendment wouldn’t stop federal agents and NSA from conducting mass surveillance, any warrantless data gathered by NSA and other entities would be inadmissible in state courts. In addition, it would restrict the flow of information from local agencies to federal agencies.
SF33 would prohibit electronic communication or remote computing services from disclosing records to governmental entities without a search warrant, court order, or consent of the subscriber/customer.
A court order would be required for a government entity to access personal identifying information, but would only be issued with probable cause. The bill includes a few exceptions, such as potentially life-threatening information, informed, affirmative consent of the subject identifying a caller’s location when they request emergency services.
Both bills have been referred to the Senate Judiciary Committee, and will need to pass by majority vote before they are considered by the full state Senate.
These two bills follow years of ongoing conversation about government surveillance capabilities using technologies such as license plate readers (LPR), Stingray, KingFish, and drones, as well as various forms of of administrative subpoenas from telecommunication companies.
“As we were going through these issues, it became pretty clear to me that the government was not going to disclose its capabilities to the legislature or the public in a proactive manner, ever,” says Petersen.
“They will only discuss them once it’s been revealed other by way of Freedom of information act requests by advocates or by investigative journalism as was the case with license plate readers, and that’s a problem from a policy-making standpoint because we can’t comprehend or debate the civil liberties ramifications of their activity or their capabilities.”
Rather than continuing to address new technologies in a piecemeal fashion, Petersen and the data practices commission in Minnesota thought that a universal standard should be put into place, and a universal concept of privacy articulated, “so that it doesn’t matter whether you’re using license plate readers or drones or KingFish or facial recognition software or whatever, that that information, once it meets a certain degree of personal or individualized nature, is private… or at least requires a probable cause to access that information if you’re a government entity.”
SF33 articulates what individualized data means, so that it requires a probable cause warrant from a judge, no matter what tool or technology is used. Petersen expects the bill to be steadfastly opposed by law enforcement and by extension, the governor.
SF32, on the other hand, is a constitutional amendment which doesn’t require the governor’s signature. It is very similar to the one proposed in Missouri in 2014, which passed with broad bipartisan support in the legislature and earned 75 percent of the vote in a statewide referendum. Petersen is confident that public support exists for the issue.
The bills need to pass by majority vote in the judiciary committee, and as of now, Senate Judiciary Committee Chair Ron Latz has declared he’s not going to hear them.
“This could change once it becomes more clear to him that there is some public demand for it,” says Petersen.
“Nobody wants to be on the wrong side of an 80 percent issue, and I’m hopeful he has a change of heart.”