Friday, July 5, 2013

Restore the 4th Amendment (In Minnesota)

It was great to see thousands, if not tens of thousands of Americans rally across the USA in support of the 4th Amendment which many Americans consider a most precious of the Bill of Rights.  There were a number of Minnesotans who rallied at the Hennepin County Building Plaza yesterday. The emphasis of the rallies where to wake up Americans of the need to watch government and its doings in the collection of millions, if not billions of bytes of our personal data and to set high standards when the US Government wants our personal data.

But it is also important to "restore the 4th Amendment" on the local and state level, specifically here in Minnesota.

Many people may not know this, but we have a 4th Amendment equivalent which is in the Minnesota State Constitution. In our state Bill of Rights, it is Section 10.  The 4th Amendment of the US Constitution has been interpreted by the United States Supreme Court (SCOTUS) in a number of ways which has set out limits as to what privacy means.  But our State Constitution can be interpreted to give us Minnesotans more rights and protections than what the Federal Constitution does.  For example:

You may have heard about roadblocks being set up with the yellow horse saws with local police stopping every car and asking to see an ID, possibly registration, but also at the same time seeing if there may be any indications that may lead them to suspect you for something.  Many times in other parts of the country roadblocks have been set up to check for impairment in driving (drunk driving), check for registration, among other reasons.  The United Supreme Court in a case said that roadblocks are constitutional per their view of the 4th Amendment for purposes of sobriety checks.

But our Minnesota Supreme Court interpreted our State Constitution, Section 10, in Ascher v Minnesota Department Public Safety Commissioner in 1994 and stated that we have more protection of our privacy in certain roadblock situations which makes them illegal and unconstitutional.

Another way to "restore the 4th" is in state statute.  Many of you have heard of the Jones case decided by SCOTUS last year.

The case basically says that the 4th Amendment of the Federal Constitution requires a search warrant which is the highest protection for privacy from the government when they want to put a tracking device on you car.

But did you know in Minnesota we were only a couple of states that had a law that protected our privacy when tracking devices are placed on cars.  This came about because of work I did with Senators Randy Peterson, Gene Merriam, and Fritz Knaak, and Representative Pugh in 1989.  The statutes are 626A.35 through 626A.39  Our state statute was even cited in the briefs used by the parties in the Jones case.

I illustrate the above as examples, how we in Minnesota can restore the 4th Amendment and the protections it envisions for us in Minnesota.  Whether it be through state laws at the Legislature or through the state courts we can make a difference.

There are a number of privacy and civil liberty issues that confront us immediately in Minnesota. Some are of the following:

Whether it be the use of familial DNA, the collection and use of DNA when arrested which in Minnesota you need a search warrant to get based on Court of Appeals decision which is different than the recent SCOTUS decision. (There may be attempts in Minnesota Legislature to change law to make it easier to collect DNA).

Or even how Minnesota law enforcement agencies have easy access to many of our personal emails, documents,  and personal papers in the "cloud" through a simple use of an administrative subpoena or a simple court order (not a search warrant) based on a legitimate need for a law enforcement inquiry.  A very low standard.  There is no 4th Amendment protection for Minnesotans in some of their emails, "personal papers", and documents when they are held by third parties in the electronic storage and communication business.

Restore the 4th in Minnesota. 

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