Col. Matt Langer, the chief of the Minnesota State Patrol, testifies before a Senate panel in July 2020. (Photo: Kevin Featherly)
This week’s topics: Deleted messages; brain drain; half in doubt
Welcome to Session/Law Sound-off, the weekly current events quiz where we approach smart folks from across the political spectrum and they tell us what’s on their minds. Their views are entirely their own.
This week’s Sounding Board (left to right): Ember Reichgott Junge, Fritz Knaak, Dave Ornstein, Amy Koch and Scott Dibble
Query 1: One thing that the resurrected Data Practices Commission likely will look into this year is document retention law. The issue arose after a major admitted in court that the State Patrol deleted uncounted emails and texts related to law enforcement’s response to civil disorder after George Floyd’s death. How did you react when you heard about those deletions?
Ember Reichgott Junge, attorney, former DFL state senator: I was surprised. Because it is normal best practice for any organization, whether profit, nonprofit or government, to have a document-retention policy of at least several years. So that looks like it was an oversight. Or perhaps [retention] was not required. But I do think that should be changed for the future.
Fritz Knaak, attorney, former GOP senator: Whoops! That’s something they shouldn’t have done. They should know better. I’d be very curious to see what policy they have in place that would have allowed them to do that. Because clearly, that runs contrary to the spirit, if not in particulars of the Data Practices law. I served on the Data Practices subcommittee of the Senate Judiciary Committee for 10 years. I actually lecture on state data practices statutes and policies, along with open meeting law stuff for other lawyers. So it’s an area of some concern. Destruction of data and all the rest of it is a big honkin’ deal. I can’t believe that the State Patrol would have a policy in place that would allow for the destruction of that data so quickly after the incidents involved. There are going to be some hard questions that are going to be asked, for sure. It does not pass the smell test.
Dave Ornstein, retired Bloomington city attorney: Well, like probably most people, I was concerned. Obviously, the first question that pops up is, why were they deleted? Are they trying to hide damaging information? It’s been a while and I don’t know what the law is in terms of retention. But if it’s violated, then I think there ought to be consequences.
Amy Koch, former GOP Senate majority leader: I am going to guess and make a better-angels assumption that it was more just like, “Well, I’m going to clean up these stacks and stacks and stacks.” I try not to just being a rush to, “Oh my gosh, cover up!” But putting some rules around it would be really important. That’s what I thought when I heard it. I was like, OK, so what are the rules? So many of our laws are so antiquated—it’s still pen-and-paper when it comes to government and we have not moved on digital [technology policy] for a very, very long time. You see that across the board—you see it in document retention, you see it cybersecurity issues, in drone issues. Data privacy and data practices are still kind in the 1990s. And the whole world has changed.
Scott Dibble, DFL state senator: I was extremely concerned when I heard about those deletions. And I’ll be very interested in seeing what the full explanation is for those in the court filing, which I think was submitted or will be submitted soon. I did seek out a conversation with Colonel [Matt] Langer along with Rep. [Frank] Hornstein [DFL-Minneapolis]. Col. Langer represented that everything was actually retained, because they knew it what was going to be subject to some court action. I’m hoping that’s true. But I’m also really curious to know if there was, in fact, an effort to purge documents outside of any kind of normal retention schedule. We really do need to make sure that important public documents are maintained for an appropriate amount of time.
[Editor’s note: The court filing Sen. Dibble refers to, a memo opposing plaintiff’s preliminary injunction request in the federal Goyette et. al. v. Minneapolis, et. al., lawsuit, was filed Thursday. In it, defendants deny any spoliation of evidence and say they still possess “massive amounts of data, including emails and text messages, from the relevant time period.” The memo also says defendants will seek a protective order “to prohibit plaintiffs from submitting highly prejudicial and untrue allegations to the press.”]
Stock image: Gerd Altmann, Pixabay.com
Query 2: Rep. Eric Lucero, R-St. Michael, wants the Data Practices commission to vet a “neural data” bill to regulate companies like Elon Musk’s Neuralink, which wants to digitally extract and use data directly from people’s brains. The bill asserts Minnesota consumers’ rights over their brains’ information. What’s your reaction to the possible emergence of this sci-fi technology?
Reichgott Junge: It’s scary. If what he is saying is true, that is something that could have consequences in many different ways for individuals and businesses. So I think it should at least be investigated.
Knaak: The reality is always ahead of the law on these things. I find that frankly frightening.
Ornstein: [Chuckles.] It’s the first I’ve heard about it. I don’t know what they’re talking about, frankly. I certainly wouldn’t want anyone to know what I’m thinking, unless I happen to divulge it. These days there are regularly evil thoughts coming to mind about a lot of things. [Laughs.] I doubt it is humanly possible to do that, but thoughts are something that should remain within the brain. The only way they should be divulged is if the person doing the thinking decides to tell somebody, “This is what I really think.” And sometimes you’re better off with non-disclosure.
Koch: I mean, it is kind of creepy, right? So I am glad he is bringing it up. It sounds like the use of it is maybe years and years in the future, but government doesn’t move quickly. We are always responding. I remember when [former GOP Sen.] Sean Nienow brought up questions about drones. This was years ago. People kind of giggled and laughed. Now drones can be anywhere and they’re being used by law enforcement and other entities and they can be very evasive. But at the time people were like, “What? Drones? Huh?” So I appreciate it when somebody in government is looking ahead to what the technology is doing. Because we are always 10 steps, 20 steps, 30 steps behind. It sounds like very creepy, creepy, technology, and we’d better be in front of how it’s used.
Dibble: This is the first I’m hearing of it. It definitely would warrant government regulation in protection of the public’s interest. I’m really glad to hear that Representative Lucero believes that we have bodily autonomy and welcome him to also support reproductive-health freedom.
Photo: Andrew Neel, Pexels
Query 3: According to a recent Minnesota Poll, about half of voters outside Hennepin and Ramsey counties either refuse to accept Joe Biden’s victory in the 2020 election or have doubts about it. If you believe those poll results, what do they tell you?
Reichgott Junge: That democracy is in trouble and that we have a very difficult job ahead of us in the next election. Because people just don’t believe what they hear from government or candidates. Mistruths are now being equated with truth. So something is terribly wrong here. I don’t know how to solve it. I find that equally scary as the previous question!
Knaak: I absolutely believe it. And it is consistent with other polling I have seen that shows this kind of disparity going on. It emphasizes something that’s been going on for a long time. There is a distinct and growing difference between the way people think in Greater Minnesota and in the core metro areas. I love what they say in Wisconsin about Madison being 30 square miles completely surrounded by reality—increasingly, what you’re seeing in Minnesota is kind of the same thing. You’ve got two core counties that are surrounded by reality. But it makes me anxious a bit, because what it’s based on is a lack of trust in government generally. This has been a very slow build. This is not a Donald Trump thing. It’s not even a Jesse Ventura thing. It’s been going on for a while.
Ornstein: They tell me that our democracy is in jeopardy. it’s not just the polls in Minnesota. Apparently 70% of Republicans in the country, according to some polls, believe the big lie and won’t accept Biden as president. That’s extremely troubling, not only now, but going forward to the 2022 congressional elections. A lot of Republicans believe that unless the Republicans win, the results are fraudulent and the whole system is rigged. Couple that with states that are enacting voter-suppression laws, which will engender significant skepticism on the part of Democrats and Independents about whether the results are valid. To me, this is a clarion call to somehow, in some way, get the majority of people in this country to believe that the best form of government is one where eligible voters should be allowed to vote and get people to have full faith that our voting officials and volunteers are doing their job. I don’t know how we can overcome that. This is the scariest thing that I’ve witnessed in my lifetime.
Koch: It’s all the same things that we’ve had for a lot of years. Both sides have engaged in misinformation/disinformation for political gain, instead of focusing on facts and being honest with the people they serve. Any time someone does that, it’s wrong, because it is too easy for people to get caught in a loop of just getting the information they want. It is incumbent on leadership to step forward and make sure that the record is being set straight. We have to have truth and we have to have trust in the information from government, business or any of our institutions. Shame on anyone who manipulates information or straight out lies—and shares lies and promotes lies—for political gain.
Dibble: They tell me that we have an existential threat to our democracy. Because the only way that a free, fair and open society functions well is when people are well educated, well informed and accept objective and scientific evidence as a part of the information that they receive in making their value judgments and political decisions. When conjecture, motivated reasoning, the inability to reconcile cognitive dissonance and the like are part of the equation, it is a recipe for total chaos, mob rule and anarchy. I am extremely discouraged to hear this. And I think that people who take advantage of this campaign of disinformation for political gain are a disgrace to our democracy and are fundamentally unpatriotic and un-American.