American constitutions fulfill two principal roles: establishing a governmental structure and preserving citizens’ civil liberties. They also provide an amendment process to adapt to changing circumstances over time. A proposed constitutional amendment, pending before the Minnesota Legislature, provides a much-needed 21st century update for our state’s Constitution.
Our federal bill of rights, including the Fourth Amendment to the U.S. Constitution, was ratified in 1791. Our state bill of rights, including Article I, Section 10 of the Minnesota Constitution, was ratified in 1858. Both the Fourth Amendment and Article I, Section 10 protect us against unreasonable warrantless searches of our “persons, houses, papers, and effects.” The proposed data privacy amendment would simply add the following four words “electronic communications and data” to the right of the people to be secure against unreasonable searches in Article I, Section 10. If passed by the Legislature, the proposed amendment would appear on the November 2016 election ballot.
As we have entered the digital age over the past quarter century, technology has advanced at a staggering pace. Our law has failed to keep pace with these technological advances, however, at the expense of our privacy and civil liberties. With the advent of the Internet, e-mail, cellphones, text messaging and social media, the overwhelming majority of our “papers and effects” are now stored in the cloud or on third-party servers, rather than in desk drawers as they were in 1791 and 1858.
Senate Judiciary Committee Chairman Ron Latz, DFL-St. Louis Park, has blocked the data privacy amendment from being heard in his committee. According to a Feb. 17 Star Tribune article (“Putting privacy ahead of party”) “he opposes legislating by amendment, and thinks the proposal is redundant because recent court decisions support requiring a warrant for electronic data.”
Generally, I agree with Sen. Latz that legislating by amendment is a bad idea because legislation that neither establishes a governmental structure nor preserves citizens’ civil liberties does not belong in a constitution. Yet the proposed data privacy amendment is not mere legislation; it belongs in our Constitution because it preserves our civil liberties by preventing the government from accessing electronic communications and data without a search warrant.
I completely disagree with Latz that recent court decisions render the data privacy amendment redundant. Less than four months ago, the Eighth Circuit Court of Appeals upheld the use of an administrative subpoena — instead of a search warrant — to obtain data from an Internet provider. The Minnesota Court of Appeals reached an identical ruling in a similar case less than two years ago. Both decisions relied on a 1976 Supreme Court ruling that people have no legitimate expectation of privacy in information they provide to third parties.
In 1989, Minnesota enacted statutes permitting prosecutors to subpoena records from a variety of third parties (including cellphone companies, Internet providers, computer networks, utilities, banks and transportation companies) without obtaining a search warrant from a judge. As we have fully entered the digital era over the past 25 years, our reliance upon technology has increased to the point that we now legitimately expect our electronic communications and data to remain private. Nevertheless, the law does not yet reflect that expectation and, contrary to Latz’s opinion, recent court decisions do not require a warrant for electronic data.
The only way to ensure that the government does not have access to our digital information without a warrant is to amend our Constitution to add “electronic communications and data” to the right of the people to be secure in their “persons, houses, papers, and effects,” as Missouri did last year, when a similar measure passed with 75 percent of voter support. Were the framers of our Constitution alive today they would undoubtedly support the data privacy amendment.
Latz should give it a hearing.
Howard Bass, of Lakeville, is past president of the Minnesota Association of Criminal Defense Lawyers and an ACLU-MN board member.