Minnesota lawmakers must decide whether something less definitive than a search warrant would be just as effective at protecting citizen's constitutional rights.
The House is debating a move to regulate the use of controversial "cellular exploitation devices," which mimic local phone towers to capture the location of cellphones — and the suspects who carry them.
Companion bills in the House and Senate would require police to show probable cause and get a judge's signoff before deploying the devices. But the legislation has been stripped of all references to "search warrant," replacing them with "court order" and "tracking warrant." The move troubles civil liberties advocates who say the new language could render the laws toothless.
"Our concern is that a court order is not as defined as a search warrant," said Benjamin Feist, legislative director for the American Civil Liberties Union of Minnesota. "Minnesota law lays out all the protections that a search warrant specifically provides, but a court order is really unclear."
Chief Deputy Hennepin County Attorney David Brown, who lobbied for the changes along with the Minnesota Bureau of Criminal Apprehension and other agencies, said law enforcement is supportive of a higher threshold. But Minnesota's search warrant language is limited to searches of specific places and times, making it difficult for police to track across jurisdictional boundaries. Brown said law enforcement came up with the term "tracking warrant" to appease lawmakers' discomfort and to discern from court orders, which do not require probable cause — the current standard for using the devices. As long as "search warrant" is eliminated, whichever title is used will be backed by law enforcement, Brown said.
"We will leave it to the Legislature to come up with the appropriate labels for this," Brown said. "I don't think we have a great deal of concern whether it's one or the other once everyone agrees it's a written order based on probable cause."
It's the latest controversy surrounding the devices, commonly known as the Kingfish and Stingray, which were largely unknown to lawmakers until longtime privacy advocate Rich Neumeister obtained information about them under the Minnesota Data Practices Act. That information pushed lawmakers to demand answers and draft the legislation, which limits the length of time law enforcement may track suspects and requires them to note whom they've tracked. Warrants would not apply in some emergencies such as threat of imminent harm or death.
The Senate version passed 56-1 last week. Should it pass on Tuesday, the bill heads for conference committee, where the final language will be drafted.