St. Paul, Minnesota — Today, the Minnesota House of Representatives passed legislation chief authored by state Representative Joe Atkins (DFL – Inver Grove Heights) requiring government entities to obtain a court order before accessing location information of an electronic device. The bill passed unanimously, on a 120-0 vote.
Location tracking has come under scrutiny in Minnesota in recent months over cell phone tracking devices owned by Hennepin County and the Bureau of Criminal Apprehension.
“Under current law, the government can get access to cell phone location data without a search warrant, without probable cause, and without notice to the person being tracked,” said Rep. Atkins. “My legislation changes that, establishing privacy protections for technology that wasn’t around when Minnesota laws were last updated.”
The bill requires law enforcement to establish probable cause that the information likely obtained would be relevant to an ongoing investigation before a court may issue an ex parte order authorizing the installation and use of a pen register, trap and trace device, or mobile tracking device.
The bill prohibits a government entity from obtaining location information of an electronic device without a court order. A court order may only be issued if the government entity shows that there is probable cause to believe that the person who possesses an electronic device is committing, has committed, or is about to commit a crime.
A government entity may obtain location information without a court order when the electronic device is reported lost or stolen by the owner; in order to respond to the user’s call for emergency services; with the informed, affirmative consent of the owner or user of the device; with the informed, affirmative consent of the legal guardian or next of kin of the owner if they are believed to be dead or missing; or in an emergency situation that involves the risk of death or serious physical harm to a person who possesses the device.
Authorization for use must not exceed 60 days. Any extensions may only be granted by judicial order and must not exceed 60 days.
The bill provides that within a reasonable amount of time (not to exceed 90 days after the court unseals the order), the judge must order the following information served on the subject(s) of the court order: date of issuance of the order, period of time authorized/not approved, and whether information was intercepted or not.
A court order under this section must direct that it be sealed for 90 days or the objective accomplished (whichever is earlier) and the order be filed with the court administrator within 10 days of the expiration of any order. A prosecutor may request that this information not be filed. An order may be issued in whole or part if the court finds reasonable grounds to believe that it may cause the search to be unsuccessful, create a substantial risk of injury to an innocent person, or severely hamper an ongoing investigation.
At the time notice is provided, the judge must report to the state court administrator: 1) the fact that an order or extension was applied for; 2) whether it was granted, denied or modified; 3) the period authorized for collection of information (including extensions); 4) the offense specified in the order/application; 5) whether the collection required contemporaneous monitoring; and 6) the identity of the applying law enforcement officer and agency.
On or before November 15 (of even numbered years), the State Court Administrator must transmit to the Legislature all orders authorizing the collection of location information and all denied applications for the past 2 years. This report must include a summary and analysis of the data. This report must be filed with the Legislative Library and available online.
“Nearly every Minnesotan carries some mobile device with them every day and we need to make sure that the location data of innocent people is not subject to unreasonable or unchecked searches by government,” said Rep. Atkins. “Times have changed and we use our mobile devices for location services all the time. This bill is a step in ensuring our laws catch up with the times.”
Sen. Branden Peterson (R – Andover) is the chief author of the Senate version, which passed 56-1 on April 22. The two bills are expected to go to conference committee.