The secret history of electronic privacy in Minnesota

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In late spring of 1988, Mark Shields, then the Superintendent of the BCA was in a panicky mood. He and the Attorney General were trying to pass a major bill that would have great impact on our privacy rights. It would also give power to Minnesota law enforcement to encroach on our email communications and records. It also gave a way for cops to get phone numbers you dialed or who dialed you for investigation purposes…

The bill were amendments to the Minnesota Privacy of Communications law, Chapter 626A which has been law since 1969. The chapter currently regulates many aspects as how law enforcement gets access to our emails, cell phone records, computer records and do interceptions of wire, oral, and electronic communications.

What the 1988 amendments did was place into state law Congressional passed provisions from 1986. The US Congress passed in 1986 the Electronic Communications Privacy Act. (ECPA) An attempt to place some limits on law enforcement with electronic communications as policymakers at that time understood it to be. There was a provision in ECPA that states had to pass the minimum protections within two years of passage.

Federal law allows for states to have more protection and rights. The federal law sets a minimum floor.

Why was Superintendent Shields in a panicky, or one could say edgy mood? I was raising specific questions and concerns about the bill and why there should not be more transparency and accountability, but also that the Legislature should give Minnesotans more protections and rights in the privacy of their communications.

What the Superintendent and the Attorney General were up against was the coming end of the 1988 Legislative session. The bill was introduced very late and it needed to pass in order to be in compliance with the Federal law, but also for law enforcement to be able to have the authority to do such things such as wiretaps, and have access to electronic communications.

There was a special meeting called of the Minnesota Senate Judiciary Subcommittee on Privacy to hear the bill. The members were, Randy Peterson, Gene Merriam, Fritz Knaak, and Dick Cohen

The Chief Author of the bill was Senator Randy Peterson, currently a Minnesota Court of Appeals Judge.

At the hearing, each section of the bill was presented separately with the Superintendent and Attorney General representative making their points and I following them with my views.

After the hearing the subcommittee decided to pass the legislation with a sunset to take effect on August 1, 1989. The sunset did two things, give law enforcement what it needed to do their job, but also give policymakers a chance to digest the implications of the law and come back with possible changes the following session.

Senator Peterson, Representative Pugh (now a 1st District Judge) and I worked throughout the interim to come back with specific privacy protections and accountability provisions for Minnesotans in the 1989 session.

But that was in 1989. Congress passed the Electronic Communications Privacy Act in 1986 and we passed the provisions in 1988-1989. The 626A.26 through 626A.34 language mirrors the perception of technology in 1986. It is creaky and antiquated. It does not deal with data stored in the cloud or the horrendous amounts of data electronic devices which we use collect on us.

Minnesota law enforcement authorities should have to go to a judge and get a warrant before they can read our unopened email after 180 days, or access our records, documents, and calendars we store with third parties. or get our GPS/location data.