Provided by the 

Minnesota Legislative Reference Library 

Stacie Christensen, director of the state’s Data Practices Office, testifies before the Subcommittee on
Data Practices on Oct. 10. (Photo: Kevin Featherly)

Data Practices commission passes drone bill

 By: Kevin Featherly  October 16, 2019

A bill to regulate police use of drones is finally ready for prime time, a legislative
subcommittee has decided.

The bill, currently coded as SC5562-5, was passed by a unanimous voice vote of the joint
House-Senate Subcommittee on Data Practices on Oct. 10.

The vote has little practical effect beyond putting the group’s stamp on the legislation and
forwarding it to House and Senate committees. But after weeks of debate and amendments
over the interim months, Thursday’s vote likely at least improves the measure’s chances for
passage.

Just as crucially, because the bill now appears to have sign-off from members of both
chambers, privacy advocates and the law enforcement community, it would seem to stand a
better chance of being signed by Gov. Tim Walz.

It was Walz who reportedly nixed the legislation because of law enforcement concerns
earlier this year. Versions of the bill had both House and Senate support during the 2019
session, but sources indicate that Walz asked for it to be pulled from the public safety
omnibus finance bill during secretive backroom negotiations late last session.

During subsequent subcommittee hearings over the interim, the bill got a thorough airing—
and occasionally ran into some road bumps. One key concern was now-omitted civil-law
language that would have provided “all appropriate relief to prevent or remedy a violation of
this section.”

Sen. Scott Newman, R-Hutchinson, an attorney, said during the subcommittee’s Sept. 5
meeting that those terms were overly broad and ambiguous.

In the bill version passed on Oct. 10, the section is rewritten to say: “In addition to any other
remedies provided by law, including remedies available under Chapter 13, an aggrieved
party may bring a civil action against a law enforcement agency to prevent or remedy a
violation of this law.”

Contacted Friday, Newman said he is more comfortable with the revised version. “Before, it
gave really no guidance to, say, the trial court as to what those remedies might be,”
Newman said. “And so they’ve taken that language out and refined it a little bit.”

The latest bill iteration also contains a new definition for “terrorist attack” referenced from
another part of statute. It applies to a terrorist-incident exception to the bill’s general rule
that law enforcement agencies must obtain search warrants before deploying drones.

Some other exceptions to that rule apply to:

Emergencies that involve the risk of death or bodily harm.

Flyovers above public events where there is heightened risk to the safety of participants or
bystanders.
Efforts to prevent loss of life and property during natural or manmade disasters.
A threat assessment in anticipation of a specific event.
Collection of information from a public area if there is reasonable suspicion of criminal
activity.

The bill also requires law enforcement agencies to adopt written drone-use policies before
deploying unmanned aerial aircraft.

If the bill is picked up by the two houses’ legislative committees next year, it remains subject
to continued debate and unlimited amendments.

Cloud data
Three alternative ideas also were batted around Oct. 10 as lawmakers and advocates seek
ways to prevent state agencies from hiding public data on cloud servers controlled by third
parties, like government consultants or Google.

That issue came up in the wake of a Ramsey County District Court ruling earlier this year,
which dismissed a lawsuit that tried to force release of the state’s Amazon Headquarters 2
bid.

Though the bid was voluntarily released before the suit was heard in the appellate courts,
public data advocate Matt Ehling said the episode demonstrates the risks to public-data
access posed by increasingly popular cloud services.

Ehling pitched two alternative ideas to deal with the problem legislatively.

The first idea would add a new section to the state Government Data Practices Act to cover
cloud storage.

The new Section 13.16 would define “cloud data” as information “stored on a computer,
computer network or similar” that is “possessed, controlled and/or owned by a third party,”
but that is nonetheless accessible via electronic means to a government agency.

That measure would also assume a public right to data produced through “an express or
implied contract or agreement between a third party and a government entity.”

The same access rights would apply when “a consensual act undertaken by a third party”
permits data to be accessed by a government agency.

Ehling’s second option is broader and less specific. “Use by a government entity of any third
party’s computer capabilities makes the data that has been received or otherwise captured
 by the devices, processes or employees of the government entity ‘government data’ subject
to this chapter,” it says.

Ehling cautioned that the language is “not perfect” and that he and his group, the Minnesota
Coalition on Government Information, are willing to revise it to address concerns.

Another, slightly less fleshed-out idea was proposed by Stacie Christensen, head of the
state’s Data Practices Office. She said she has been tinkering with a new sentence for the
state’s current definition of government data.

“It’s something along the lines of ‘government data includes…’ to get to that idea of the
right-of-access concept granted by another person to a government entity,” she said. “So it’s
kind of a more simplistic way, as opposed to adding another section.”

Sen. Warren Limmer, R-Maple Grove, the subcommittee’s chair, cautioned against that
approach. Trying to write a definitive laundry list of government data types, he said, only
invites chicanery.

“When you’re going down the trail of ‘government data includes,’ you’re going to have to put
it in a lot of things after that statement,” Limmer said. “And if you don’t put it in, then it
gives people a reason to play mischief with our data.”

Christensen then offered a slightly more elaborate version of what she has in mind.

“I’m playing with the idea of language about ‘government debt includes data maintained by
a person that is granted an express right of access to a government entity for the joint use
or review of data,’” she said. “So it’s not kind of listing what it might include. It’s
incorporating that right of access.”

No action was taken. Limmer said the subcommittee might consider cloud-data language in
bill form at the group’s next hearing in November.

ABOUT KEVIN FEATHERLY

Kevin Featherly, who joined BridgeTower Media in mid-2016, is a journalist and former
freelance writer who has covered politics, law, business, technology and popular
culture for publications and websites in the Twin Cities and nationally since the mid-
1990s.

Copyright © 2019 Minnesota Lawyer, 222 South Ninth Street, Suite 900, Campbell Mithun Tower, Minneapolis, MN

55402 (612) 333-4244