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The Minnesota legislature has introduced an amendment to the MN Constitution to enshrine the protections afforded by the 4th amendment to electronic communication and data as well. It appears that this amendment has broad diverse support in the state house but leadership in the state senate is only lukewarm on it. In the senate Ron Latz (DFL) Chairman of the Judiciary Committee had blocked the amendment stating that he feels it is redundant. Additionally Senate Majority Leader Tom Bakk (DFL) opposes the amendment because it is an amendment to the MN constitution. If passed, Minnesota would become only the second state to enact such a change — Missouri enacted its amendment last year with 75% of the popular vote.
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MN Legislature Introduces Amendment to Protect Electronic Communication
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The truth about a man lies first and foremost in what he hides.
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(Score: 4, Disagree) by MrGuy on Wednesday February 18 2015, @10:06PM
The state of Minnesota is not a sovereign nation. It's a part of the United States of America. Federal law pre-empts state law.
Don't get me wrong - I'm all for the 4th amendment, but repeating it at the state level is largely a pointless exercise. The 4th Amendment applies to ALL Americans, regardless of where they live - the state of Minnesota doesn't need to independently enact it, nor does anyone gain any new protections if they do so.
At best, what this would do is prevent the Minnesota state police (or local police) from explicitly using electronic communication gained without a warrant for state criminal cases. But, again, that's to the extent the 4th amendment doesn't ALREADY prohibit such evidence. And, to the extent the 4th Amendment is held NOT to apply to such evidence in Federal court, what makes you think that it WILL hold in Minnesota state court? Why would the result be different.
What this action definitely does NOT do is impact any federal agency (DHS, FBI, DEA, etc.) from doing whatever they want, whether in Minnesota or elswhere. It doesn't pre-empt NSL's, or any FISA-approved surveillance. Nor, of course, does it prevent the NSA from doing whatever they want (not that the NSA is subject to any laws whatsoever at this point). It also is unlikely to prevent the (illegal, but reportedly widely used) "parallel construction" approach, where the warrant for the electronic communication is obtained after the fact, by constructing an artificial alternative reason you "suspect" the communication in question is relevant and lying to the judge you're applying to for a warrant.
(Score: 1, Insightful) by Anonymous Coward on Wednesday February 18 2015, @10:13PM
You are protected by the 4th amendment, but to see if your 4th amendment rights have been violated might take 15 or 20 years of going through various courts all the way up to the top at vast personal expense. Even if it on the surface seems obvious to everyone (laymen), except the judges and the lawyers tasked with defending the government action in each individual case.
(Score: 2) by c0lo on Wednesday February 18 2015, @10:39PM
For example: how the fed laws prevent the friendly other 4 partners in the "Five eyes" mob to offer a helping hand in bypassing those pesky fed laws?
The security of electronic communication is, by and large, an engineering problem.
As such, trying to get a solution from outside engineering space is, indeed, largely pointless
https://www.youtube.com/watch?v=aoFiw2jMy-0
(Score: 2) by fliptop on Wednesday February 18 2015, @10:40PM
I think the 10th Amendment pre-empts your statement. True MN is not a sovereign nation but it is a sovereign state. As such they have the power to do anything they want inside their borders. It's why there's a federal law criminalizing use of marijuana but states like CO can allow it's regulated use.
The question is, what will states like MN do for communications that cross state lines?
To be oneself, and unafraid whether right or wrong, is more admirable than the easy cowardice of surrender to conformity
(Score: 3, Insightful) by mhajicek on Wednesday February 18 2015, @11:11PM
In theory you're correct, but in practice the tenth has been shredded and discarded.
The spacelike surfaces of time foliations can have a cusp at the surface of discontinuity. - P. Hajicek
(Score: 3, Insightful) by frojack on Thursday February 19 2015, @12:27AM
So has the 4th, so this whole constitutional argument is pointless.
No, you are mistaken. I've always had this sig.
(Score: 2) by pnkwarhall on Thursday February 19 2015, @01:47AM
It doesn't make the amendment worthless as **a statement**. This makes me want to move to Minnesota more than, say, the legalization of pot makes me want to move to Colorado.
Lift Yr Skinny Fists Like Antennas to Heaven
(Score: 5, Informative) by Anonymous Coward on Wednesday February 18 2015, @11:00PM
"Federal law pre-empts state law."
That is incorrect. Federal law functions in parallel, not above state law. Which is why the fed can't compel state police to enforce federal law when state laws aren't violated. This has been upheld on a number of occasions. Almost all the related legislation on the federal side is commercial code, which is granted under the federal right to regulate interstate commerce.
It is worth noting, the SCOTUS has not addressed its own conflicts with Article 1 Section 9, or with its divergence with the separation of powers doctrine. So it is hard to say whether throwing out any more of the Constitution is in vogue at the moment. But it would be fair to say that few state courts would regard SCOTUS with any respect if things get much worse.
MN is setting itself up for a fight, and they should be applauded. Unfortunately MN can't compel SCOTUS to take a case. So you can expect the same thing we saw with Citizens United vs. FEC. Which is a cherry picked case, poorly fought, and very possibly argued with the same intent by both sides. But at least some light will shine, though it is scary to consider what it may reveal.
(Score: 5, Insightful) by frojack on Thursday February 19 2015, @12:24AM
Don't get me wrong - I'm all for the 4th amendment, but repeating it at the state level is largely a pointless exercise. The 4th Amendment applies to ALL Americans, regardless of where they live - the state of Minnesota doesn't need to independently enact it, nor does anyone gain any new protections if they do so.
Seems to me that there is possibly still reason for this law.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Since the bill addresses electronic communication and data, there little to no protection offered by the 4th. You have already handed your communications over to a third party when you sent it over the net. An individual has no legitimate expectation of privacy in information provided to third parties. (Smith v. Maryland, 442 U.S. 735 (1979). There is no "reasonable expectation of privacy" on the net, most specifically not with regard to email. There never has been, in the absence of encryption.
If nothing else, this bill prevents MINNESOTA (and Minnesota police agencies) from intercepting, cataloging, recording. That alone is worth the effort of passing the bill.
No, you are mistaken. I've always had this sig.
(Score: 0) by Anonymous Coward on Thursday February 19 2015, @01:22AM
You are not drawing the right distinction. The 3rd party doctrine applies regardless of electronic or analog data. Similarly simply using the network does not expose you to the 3rd party doctrine, no more than the feds are allowed to tap your phone calls. The Electronic Communications Privacy Act (ECPA [wikipedia.org]) and the Stored Communications ACT (SCA [wikipedia.org]) did establish some protections, however they have been reduced by the PATRIOT and CALEA acts.
(Score: 3, Interesting) by Anal Pumpernickel on Thursday February 19 2015, @02:59AM
Since the bill addresses electronic communication and data, there little to no protection offered by the 4th.
The "papers" bit was meant to protect your information, not so much your literal papers. Now, this combined with the fact that we live in an age where it's nearly impossible to avoid having a great deal of data about you stored by many companies indicates that your information is indeed protected by the 4th amendment. You can't tell me that it violates the spirit of the constitution for the government to directly spy on you, but then it suddenly doesn't violate the spirit of the constitution when the government uses companies to collect your data and then they 'voluntarily' give it to the government. I also strongly suspect that if the mass surveillance we're seeing now had been used against the founding fathers, they would have taken steps to more explicitly prevent it, much like they did with other issues. So I would say the 4th amendment is sufficient. Still, things like this can't really hurt anything, even if they only make a statement.
There is no "reasonable expectation of privacy" on the net, most specifically not with regard to email.
There is an *ethical* expectation of privacy, however. I despise this "reasonable expectation of privacy" standard, because all it means is that if the government violates a certain type of privacy enough, no one could have a 'reasonable' expectation that they have that type of privacy. I say it is unethical for the government (or most others) to spy on my communications, even if they are unencrypted. That doesn't mean that we shouldn't encourage encryption as a safety precaution, though; we definitely should.
(Score: 2) by Anal Pumpernickel on Thursday February 19 2015, @03:03AM
That doesn't mean that we shouldn't encourage encryption as a safety precaution, though; we definitely should.
Especially since we have lots of authoritarian judges who don't actually care about the constitutional or people's freedoms, as you showed when you referred to that case. Whether it is 'metadata' (which is just a type of data, despite them wanting to make them appear completely separate, and it is very useful for oppressing people) or the actual content is irrelevant.
(Score: 2) by frojack on Thursday February 19 2015, @04:17AM
Ethical? Spirit?
I'm just going by what the judges said.
No, you are mistaken. I've always had this sig.
(Score: 2) by Anal Pumpernickel on Thursday February 19 2015, @08:34AM
There's your mistake.
(Score: 2) by NotSanguine on Thursday February 19 2015, @02:51AM
I'm all for the 4th amendment, but repeating it at the state level is largely a pointless exercise.
Unless you live in Minnesota, no? I don't and I wish my state would enact something similar.
Also, it's useful as a tool to shame those corrupt jackasses in Washington, DC.
Just sayin'.
No, no, you're not thinking; you're just being logical. --Niels Bohr
(Score: 0) by Anonymous Coward on Thursday February 19 2015, @10:45PM
The 21st Amendment to the US Constitution repealed the 19th (Prohibition).
It was the ONLY time a constitutional amendment was passed by state constitutional conventions.
(By that time, a bunch of state|county|city governments had already stopped tasking their cops with enforcing that law.)
If enough states show their absolute support for this notion, it could become a new amendment to the federal Constitution.
(There's a 7-year window where 75 percent of the states have to ratify it.)
-- gewg_
(Score: 0) by Anonymous Coward on Thursday February 19 2015, @02:58PM
" but repeating it at the state level is largely a pointless exercise. "
The 14th amendment was also accused of being redundant and unnecessary. Though even after the 14th amendment was passed many states decided to play games instead of getting with the program. We can expect the same thing here, except backwards. Either that or a Constitutional Convention which is entirely possible at this point.
If you read the U.S. Constitution critically, and compare it to many state Constitutions, the states are often more explicit about civil rights than is the Federal government. For example, while the Declaration of Independence cites the origin of sovereign authority, but no such citation exists in the U.S. Constitution. In my state the citation does exist. So legally speaking, we are a government "by the people" at a state level, but not at a federal level. (Civics teachers everywhere cringe)
There are also still remnants of indecision that go all the way back to the founders. For example, the distinction of ONE law, for all people is still largely absent. The only thing that prevents formal aristocracy is article section 9 paragraph 8, (I think) which is the section that says we don't do titles of nobility. Though it is fair to say that this is precisely what the authority delegated by many regulatory agencies has evolved into in substance.
So the distinction of formal aristocracy is largely semantic at this point. Certainly Corporations are setting up their own courts and dispensing law within private jurisdictions in many ways. This may not be a power grab, so much as pragmatism in the face of Congressional refusal to appoint judges.
Really state law is where it's at at this point. Or where it needs to be, since Federal law is failing at a procedural level. It is hard to avoid characterizing the Fed as an International government at this point. Congress takes funding from International conglomerates, which could be reasonably argued to violate article 1 section 10. So there are procedural problems that will require litigation to get sorted out. The states taking a stricter view on civil rights is a good thing, because it is likely to compel that litigation.
(Score: 2) by urza9814 on Thursday February 19 2015, @05:52PM
I haven't read the full text of the bill, but I would assume it also authorize them to arrest any federal agents violating that law in their state (certainly not explicitly, but laws generally apply to everyone).
That's exactly the point. The state has the resources to fight the feds on this. You or I don't. This bill would effectively authorize state officials to start that fight.