Last month, Republican Rep. Peggy Scott, the chair of the House Civil Law and Data Practices Committee, was discussing a measure to regulate data that law enforcement agencies collect with license plate readers, when she decided she wanted to offer a change to the bill.
The so-called LPRs are used by cops to track criminals’ vehicles, but innocent people’s data are stored, too, and Scott wanted to amend the bill in a couple of different ways. Among other things, she wanted to impose a seven-day maximum on retaining whatever data is collected; to limit what cops could share with other agencies; and to require audits of how well law enforcement was complying with the rules.
The amendment set off a frenzy. The first attack came from a fellow Republican, Rep. Tony Cornish, who worked in law enforcement for more than 25 years and is the chair of the chamber’s public safety committee. Cornish, who wanted a 90-day data retention period, called Scott’s proposal “worthless.”
Scott offered to pull the amendment to discuss a compromise outside of the committee room, but a Democrat, Rep. Debra Hilstrom, who agreed with Cornish, called on the committee to take an up-or-down vote — preferably down.
That’s when another Democrat, Rep. John Lesch of St. Paul, came to Scott’s aid, criticizing fellow DFLer Hilstrom for trying to put Scott on the spot and “jeopardize a negotiation process.”
With gavel in hand, Scott quickly adjourned the committee before a vote could be taken.
An issue that cuts across party lines
In a world where rapidly developing technology makes it easier than ever to collect and store information about citizens, it’s no surprise that there’s been a growing concern about civil liberties and data privacy protection at the Capitol. Nationally, stories about NSA’s bulk collection of telephone records have increased the profile of the issue, while several well-known data snooping cases in state and local government have brought it close to home. And lawmakers are being forced to grapple with a growing number of tools law enforcement employs that collect and store massive amounts of data.
What may be surprising is that civil liberties and data privacy protection has become one of the rare political issues that can’t be cut cleanly down party lines. During the 2015 Minnesota legislative session, the issue has pitted Democrats against Democrats and Republicans against Republicans, and aligned groups that would have been unlikely allies in the past.
And though it has already consumed hours of legislators’ time in committees, most observers believe the state has just begun to grapple with the myriad consequences of the issue. In fact, members from both political parties see it as one of the next big issues for voters — one that has the potential to attract supporters to whichever party can own it.
It turns out that, politically, clamping down on intrusions into private data looks like a winner. A Public Policy Polling survey of 500 Minnesotans conducted in late February showed 85 percent of respondents — from both parties — feel the government should not be able to view their phone data, pictures and emails without probable cause. The poll, commissioned by Liberty Minnesota and the Republican Liberty Caucus, highlighted an interest among conservatives in owning the issue with the electorate.
“There’s a major change that has happened. It feels since the NSA scandals and Edward Snowden scandal, that really was a tipping point,” said Ben Feist, legislative director for the American Civil Liberties Union (ACLU), who — before this debate — rarely found himself sitting next to friendly Republicans when testifying before the Legislature. “I think the Republican Party has seen this as an area where they can sort of stake out their ground on an issue and say, ‘Hey, we are the party who is trying to project you from government intrusion.’ ”
Law enforcement weighs in
Even the most popular issues can hit the brakes at the Capitol (see: Sunday liquor sales). And whether it’s police body cameras, drones or devices that read and collect data on car license plates, legislators this session are trying to strike a delicate balance: between protecting citizens’ private data and assuring law enforcement’s ability to catch criminals.
Near the top of the list of legislators’ concerns this year: Figuring out how to regulate law enforcement’s use of devices that can track license plates, which police already employ to help find stolen cars and suspected criminals. More specifically, lawmakers are trying to figure out how long cops should be able to store the data they collect on license plates, many of which belong Minnesotans who have done nothing wrong.
Some data protection advocates want there to be no retention of the data at all. A compromise recently reached in the House between law enforcement and civil liberty advocates puts that data-retention window at 30 days, but a Senate proposal has a 90-day retention period.
“Many crimes that are committed aren’t reported right away — sometimes days weeks and months might go by,” said Andy Skoogman, executive director of the Minnesota Chiefs of Police Association. “The ability to retain the data for a reasonable amount of time, we believe it’s essential.”
That license reader debate will at least head to a conference committee, which some legislators say is more than might happen on body cameras, a tool being employed in only a handful of police departments in the state: Minneapolis (on a pilot project basis), Burnsville and Duluth.
The idea behind the cameras is to increase trust and accountability on the part of police, but there’s debate over what to do with the video captured during more sensitive police interactions, like a house call for a domestic disturbance.
State senators have approved a bill that would classify most of the data collected by police body cameras as private, except for video that captures an officer using a weapon or causing harm. People in the video would also be able to obtain recordings of incidents and blur out images before the footage is released to the general public.
The bill has stalled in the House, where Cornish, the Republican chairman of the Public Safety and Crime Prevention Policy and Finance Committee, wants to set up a task force to study the issue.
“The one big overall umbrella issue is big brother in government,” said Cornish, R-Good Thunder. “That’s the concern without really knowing what that means — it’s that general feeling of what is enough? But then they balance that out the more they hear about the issue and the challenges some of these proposals pose. [License plate recognition] will probably be resolved. It will go to a lively conference committee. I would be surprised if anything happened on body cameras this session.”
“We are just at the point where major departments are beginning to deploy body cameras across the entire agencies, and not just in Minnesota,” Skoogman said. “What we decide today will have a major impact how policing is done in the future and how public safety is delivered for many years to come.”
Civil liberties advocates say their biggest roadblocks so far in getting the privacy protections they want have been two committees: Cornish’s public safety panel in the House and the Judiciary Committee in the Senate. “What we see is the pro-privacy folks taking on the pro law enforcement folks,” the ACLU’s Feist said. “So we see strong support from both parties on this as well as strong opposition.”
“I’m seeing more and more interest, but I’m also seeing — with the complicated nature of the issues — it’s really difficult for people to get their heads around them,” said Lesch, former chair of the House Civil Law Committee. “Unfortunately we end up legislating by reaction, and that’s not a good way to do policy.”
The breadth of the issue is encapsulated in a proposed addition to the Minnesota Constitution from Sen. Branden Petersen, R-Andover, that would add add “electronic communications and data” to the Fourth Amendment, protecting people from “unreasonable searches and seizures as they are now likewise secure in their persons, houses, papers and effects.”
But the amendment has stalled in the Legislature, where some lawmakers are wary of etching new language permanently into the state’s constitution.
“We are losing a lot of these battles,” Petersen said. “I think the Legislature is at odds with the public on most of these issues. It demonstrates the power of the law enforcement lobby around here. Civil liberties advocates are not typically seen as a moneyed interest. There’s not a lot of money behind people who want to be left alone, there’s a lot of money and power behind those who don’t want to leave you alone.”
Conservatives see opportunity
Outside of the Capitol, Republican and libertarian groups are trying to claim the issue as their own with the electorate. It’s particularly popular among young people, the type of voter Republicans are always chasing in the polls. In the February PPP poll, 86 percent of 18- to 29-year-olds supported Petersen’s proposed constitutional amendment.
“Big government in general is something Republicans fight against,” Republican Party of Minnesota Chairman Keith Downey said. “There’s just a built-in alignment when it comes to specific personal privacy electronic data and privacy issues in our core beliefs.”
At the Republican Party’s convention last year, data privacy ranked first in an activist issue poll, and an unscientific poll at the State Fair last fall produced a similar result. “You see data privacy and other things beat things like taxes because it affects our everyday life,” said Karl Eggers, executive director of Liberty Minnesota. “We are telling party activists and even social conservatives, you don’t have to be scared about saying the Fourth Amendment should be protected. The Republican Party is missing a great opportunity if they don’t run with this.”
The issue of data privacy and protection polls just as high with self-identified Democrats, Petersen said, but it’s been more difficult for them to champion. That’s because many of the criticisms of how government handles citizen data have fallen squarely on the administration of President Barack Obama.
But DFL legislators like Lesch say Democrats should have just as much as a claim on the issue as Republicans. “If you think of civil rights movement … there is a much longer history of government targeting left-wing groups,” Lesch said. “The left should own the issue as well, and we should maintain it as a bipartisan issue. It keeps the discussion more honest.”