Data Practices Commission restarts

The Data Practices Commission’s newly elected chair, Rep. Jamie Becker-Finn, DFL-Roseville, presides over her first hearing Tuesday. (Image courtesy Legislative Coordinating Commission)

 

Panel tackles deleted trooper emails, ‘neurodata’ rights while gearing up to vet legislation

 

In its first meeting in two years as a reconstituted, fully funded and independent legislative panel, the Legislative Commission on Data Practices dipped into some legally heady topics Tuesday touching on privacy, consumer and constitutional rights.

Artificial intelligence, was one. A developing technology that could tap directly into human brainwaves was another. Consumer data privacy also came up, as did a trove of State Patrol emails reportedly destroyed amidst the mayhem that broke out after George Floyd’s death.

Nothing was decided on any of them. The eight-member panel, which includes equal numbers of House and Senate members, used much of its first meeting to bat around ideas that it might tackle at greater depth in subsequent meetings.

Delete ‘at any time’

The group’s vice chair, Sen. Warren Limmer, R-Maple Grove, was the first out of the gate with questions and comments.

Limmer, a past commission chair, asked state Data Practices Office Director Taya Moxley-Goldsmith about reports that state troopers deleted texts and emails amid the violent demonstrations after George Floyd’s May 2020 killing.

“What happens when a government agency purposely destroys information regarding their records?” Limmer asked the director. That depends, Moxley-Goldsmith replied, on whether they are official records.

She noted there is litigation moving forward in which journalists who covered the disorder claim they were manhandled, injured with projectiles and at times arrested by State Patrol troopers, interfering with their ability to cover the news. A litigation hold in that case could complicate the answer to what needs to be kept and what doesn’t, she said.

“But in general, if they are not official records—if they are not something on the records retention schedules that they must keep—they can delete those things at any time,” she said.

An administrative law judge could issue an order requiring agency compliance, and in rare circumstances, refer a complaint for possible criminal charges, according to the OAH website.

Limmer said the process Moxley-Goldsmith described isn’t very timely for a reporter seeking public documents while trying to cover a story about a government agency.

“If they have to file a civil law court case, that is going to take quite some time to get resolved in a courtroom,” Limmer said. “Continuances can occur. And so it’s not necessarily a timely solution in the event that a government agency would refuse.” But Limmer proposed no immediate solution to that problem Tuesday.

After that exchange, Limmer suggested another area of possible focus for the commission. His bill, as yet unwritten, would hold private employers to the same data-protection standards as government agencies when it comes to protecting workers’ health data.

The commission’s newly elected chair, Rep. Jamie Becker-Finn, DFL-Roseville, said that some of the questions Limmer raised—particularly the State Patrol records-retention issue—are likely fodder for future hearings.

Lucero’s list

Limmer wasn’t the only one to raise subjects for the commission to take on in the months before the regular legislative session’s January 2022 start.

Rep. Eric Lucero, R-St. Michael, had a laundry list of ideas. They included several bills already in play, so they can carry into the biennium’s second year without being reintroduced. Those include:

House File 341 (Chief author: Rep. Sandra Feist, DFL-New Brighton). This student-privacy bill would limit technology providers’ ability to profit off electronic data collected from school-issued devices. It would also make sure that “parental consent is part of the equation,” said Lucero, who co-authored the bill.

House File 424 (Lucero). This is a “neural data bill.” Lucero said some companies, including Elon Musk’s Nueralink, are developing interfaces to connect computers directly to human brains. His bill would establish “neurodata rights” and modify certain criminal statutes to add neurodata elements. The bill also would provide new civil causes of action and related criminal penalties.

House File 461 (Lucero). This is Lucero’s “deep fake” bill. It aims to regulate artificial intelligence that is used to manipulate images, videos and audio, making it appear that “people engaged in behavior they did not,” he said. Most notoriously, the technology is used to create fake porn videos featuring people who weren’t really present when the footage was shot. His bill would also create new criminal penalties and causes of action.

House File 465 (Lucero). This bill would limit law enforcement’s ability to use facial recognition technologies as a surveillance tool unless it is court ordered,“ in support of a law enforcement activity,” or supported by exigent circumstances. If allowed by court order, the bill would minimize the acquisition, retention and dissemination of facial recognition data. It also provides the right to move for suppression of such evidence.

Special Session House File 67 (Lucero). This bill would require consent prior to private businesses collecting consumers’ personal data. “Many private businesses are collecting petabytes of data on people,” Lucero said. “How is that being used and do people have control over the information being collected? That’s what that bill seeks to target.”

Special Session House File 66 (Lucero). This would regulate social media platforms and provide antitrust protections so that unfair and deceptive practices are prohibited. What it’s really about is making sure social media companies like Facebook don’t de-platform or silence conservative voices—as Lucero says, “with unfairness as part of their freedoms.”

Other proposals

Most lawmakers during Tuesday’s Zoom hearing had less fully fleshed out ideas, though Sen. Karla Bigham, DFL-Cottage Grove, did suggest that the commission vet House File 1492, the sweeping Consumer Data Privacy Act authored by Rep. Steve Elkins, DFL-Bloomington. Bigham is the Senate companion’s author.

Bigham also said the commission also should take up body-cam legislation pitched in writing by the Minnesota Coalition on Government Information. It has been five years, that group said, since lawmakers have passed police body camera regulations. Now might be a good time to see how well the regulations are working and whether they need to be revised, the group advised.

Rep. Peggy Scott, R-Andover, offered a few ideas, including one that would attempt to help lawmakers deal with the problem of technologies evolving faster than law. She wasn’t specific, but said her idea would loop general regulatory principles and guidelines around emerging technologies.

Rep. Kaohly Vang Her, DFL-St. Paul, wants lawmakers to update outmoded data practices that are based on “old values and understanding.” Specifically, she mentioned laws that make some data on married mothers public while making the same data for unmarried mothers private. Such rules were put in place when society looked down on single moms, she said. “If we have time or the ability, I would like to look at some of those items,” she said.

Rich Neumeister, a privacy and open government advocate, was the last to offer suggestions. He urged the commission to consider an inventory of old state Attorney Generals’ opinions related to public records retention.

There is one opinion on file since 1992, Neumeister said, that deals with Minnesota’s Official Records Act. The opinion, which addresses paper records, has been the basis of policy for three decades and has resulted in many electronic government files and emails being destroyed, Neumeister said.

“Sometimes those opinions have impact and maybe they should either be placed into law or looked at and reinterpreted or whatever,” Neumeister said.

Moving forward

Becker-Finn said that she plans to hold as many meetings as feasible before the start of the next regular legislative session.

Echoing a caution from Limmer, she said it is likely the group will focus the bulk of its attention on topics and legislation with a fighting chance for passage. Overly complicated bills that implicate federal and international laws probably won’t make the cut, she suggested.

She also said that, because the commission has been revived with full funding, she will look into hiring a researcher to help the group navigate potential topics and legislation.

Concluding the meeting, Becker-Finn said the items that stand the best chance of being heard in her committee are the existing bills—especially those with bipartisan support and authorship.

“We have enough bills that have been introduced that, I think, are close to being ready for prime time and that may be the best use of our time,” she said. “That will be mostly where my focus is going to be.”

The commission’s next hearing is not yet on the calendar.

 

Correction: In an earlier version of this story, we quoted privacy and open government advocate Rich Neumeister describing the effect of a 1968 Attorney General’s opinion. He meant to refer to a 1968 Supreme Court opinion, upon which a 1992 AG’s opinion was based. We have corrected the error here.