The NSA is definitely spying on you—but your local police station could be, too. A new wave of state-based laws is trying to stop them.
Law enforcement agencies have increasingly begun to rely on electronic data gathering in recent years. In Minnesota, several investigative reports blew open secretive law enforcement practices previously unknown to its citizens. A cell-phone-tower-like device called the “KingFish” was used for years by the Hennepin County Sheriff’s Office, for example, to gather information on the location and activities of phones nearby. Legislators were never informed of this practice.
Motivated by this and other abuses, Minnesota State Sen. Branden Petersen (R) has proposed both a bill and an amendment to his state’s constitution that strengthen the security of electronic data. He introduced both to the state legislature Thursday.
The bill, SF 33, requires all government agencies to obtain a search warrant before accessing any personal identifying information, including an exhaustive list of types of electronic data. It takes pains to include, within the definition of “personal identifying information,” things that the NSA and other law enforcement agencies classify as merely “metadata”: information like incoming and outgoing phone calls.
“Our courts have consistently recognized that there is no reasonable expectation of privacy in this type of metadata information and thus no search warrant is required to obtain it,” Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) has argued, in defense of the NSA.
Petersen disagrees. In an interview with Red Alert Politics, he noted that too often legislators are informed of law enforcement practices like KingFish only after they’ve begun. “We already know they’re not going to tell us when they have a new capability. We’ll always be years behind.” He wrote an exhaustive bill “so that we don’t have to write a drone bill, a KingFish bill…we can just enumerate a universal concept.”
The amendment, meanwhile, specifically extends Fourth Amendment rights to electronic information. “There’s an open question within the judicial system about exactly how the Fourth Amendment applies in the digital age in general,” Petersen explained. “We’d like to be clear that your cellphone, your email, and all sorts of electronic data and communications is considered private.”
Petersen has higher hopes for the amendment than the statutory bill, which he expects law enforcement to fight tooth and nail. For the amendment, Petersen is seeing support from the far left to the far right, from the Libertarian Party to the Tea Party. “We should have a very ideologically diverse group, probably more so than any other issue before the legislature.”
Michael Maharrey of the Tenth Amendment Center believes Petersen’s bill could also have ramifications for the NSA’s controversial practice of “information sharing” with local police departments. According to multiple reports, the NSA tips off police departments to local crime issues that often are irrelevant to national security—causing both privacy concerns, and questions about judicial uses of NSA resources.
By requiring a warrant, Petersen’s bill would make local cases based on these NSA tips inadmissible in court. Although Petersen says he was not specifically thinking of the NSA when he wrote the bill, he hopes it will curb surveillance at any government level: “For those of us who have been passionate about the surveillance state in general, we understand that it’s a distinction without a difference oftentimes. “
To those who would argue that all these added protections are superfluous, Maharrey counters, “I don’t have any faith in the federal courts to have robust protections against seizing electronic data. I think it’s very important that states step up and take action.”
And with NSA reform likely dead for now in Congress, a growing number of states are indeed taking up reform on their own. Missouri recently passed a constitutional amendment similar to Petersen’s. Last year Utah, Montana, and New Hampshire passed bills requiring warrants to obtain electronic data, while Maine and Texas did the same the year before.
The issue of electronic surveillance “has kind of snuck up on people,” Maharrey observes. “The focus has always been on old-style wire telephones and papers and those types of physical things, and we live in a digital age now. A lot of lawmakers are just now doing catch-up on it.”
