Last winter, news broke that the Hennepin County Sheriff's Office and Bureau of Criminal Apprehension owned "cellular exploitation devices" called KingFish or StingRay. They basically function like cell phone towers, allowing officers to gather data from nearby phones.
Law enforcement agencies can use those devices without a warrant and without notifying people whose information is gathered. But a bill written by Sen. Branden Petersen, R-Andover, and approved by a 56-1 vote yesterday would change that.
Petersen's original bill would've required law enforcement agencies to obtain a search warrant in order to gather someone's mobile data, but the version passed yesterday was amended with a less stringent "tracking warrant" requirement. (Read the entire text of the bill here.)
Asked why his original bill was watered down, Peterson says, "I was going to lose all the Dems if I didn't... it's better than what we have today but I still prefer the original language."
"The win is that it's still a probable cause standard that needs to be approved by a judge," he tells us. "There's also a notice provision which doesn't exist at all in the law right now, so you'll get served a notice that says, 'You've been surveilled' and you can see on what grounds."
Democrats were concerned about law enforcement's opposition to the stronger search warrant requirement, according to Petersen. (Two Minneapolis DFLers, Scott Dibble and Bobby Joe Champion, coauthored the bill.)
"Law enforcement doesn't like the bill as it is, frankly," Petersen says. "They don't like they are being restricted at all in the first place and were adamantly opposed to the bill as it as originally written, so that convinced the Democratic caucus that the [tracking warrant] amendment was necessary to get something done."
Petersen expects the revised version to be approved in the House.
"The strength of the Senate vote sends a pretty strong signal to them," he says.
The lone dissenting vote was cast by Sen. Bill Ingebrigtsen, R-Alexandria. (Ingebrigtsen made headlines last week for a ridiculous anti-pot letter he cowrote.)
"The perfect part was he got up and used the classic, 'If you've got nothing to hide you've got nothing to worry about' argument," Petersen says.
Petersen, who last year was the first Republican legislator to come out in support of gay marriage, has now emerged as one of the state's leading data privacy voices. He characterized his tracking warrant bill as just the start of a larger push to protect 4th Amendment rights.
"Me and a lot of millennials in particular, when technology becomes so exact and pervasive that it can essentially create a life profile of you without ever having to search your home in the traditional sense of a search warrant, I think a lot of people think that's invasive," Petersen says. "What does the 4th Amendment look like in the 21st century given governmental technological capabilities? A lot of those questions haven't been answered."
Petersen says he's recently been working with a diverse coalition of groups, including folks spanning the spectrum from the Tea Party to OccupyMN, on a more comprehensive data privacy bill he characterizes as "nation leading in its scope and impact."
(For more, click to page two.)
"The problem that we have right now with privacy laws in general and 4th Amendment-type protections not just in Minnesota but across the country is that they're all specific to certain methodologies or technologies, so they have a timestamp," Petersen says. "But technology moves faster than the legislature does, so we just sort of went about this patchwork and piecemeal approach. It's foolish to think we can pass one thing related to one method or one device and think that's going to have an impact on protecting peoples' 4th Amendment rights."
So the approach Petersen favors is comprehensive in nature. He uses this story to illustrate what he's trying to accomplish.
"Let's say they come up with a device, some sort of aerial vehicle that can fly over your neighborhood and from 1,000 feet in the air has the capability to go into your home, penetrate the walls and listen to everything you're doing," Petersen says. "We don't have to create a bill that says, 'This deals with drones that can do this.' Under a comprehensive approach, any method that can glean that sort of information about you requires a search warrant."
"That method doesn't exist anywhere in the country right now and it should because all these laws are quickly becoming obsolete in the context of the 4th Amendment."
Petersen says that bill, which will "lay out universal principles about expectations about privacy," will be introduced soon.