Michigan Lawmakers Looking To Amend State Constitution To Add Protections For Electronic Data

from the post-Snowden-lawmaking dept

A ballot measure introduced by a bipartisan group of Michigan legislators is sure to encounter some heavy resistance on its trip through the lawmaking machinery. The proposal amends the state's constitution to add a warrant requirement to data that law enforcement is used to obtaining without one.

House Joint Resolution C (HJRC) was introduced by Rep. Jim Runestad (R-White Lake) along with 11 bipartisan co-sponsors. If approved, voters would have the opportunity to alter Article 1, Section 11 of the Michigan state constitution in the following manner:

The person, houses, papers, and possessions, and electronic data and communications of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things or to access electronic data or communications shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.

The phrase "electronic data" covers a lot of things normally considered to be "third-party records" and currently given little to no protection under the Fourth Amendment. This amendment would establish an expectation of privacy in electronic communications and data -- at least under the state's constitution.

If passed, courts will have to consider the implications of the state's more stringent privacy protections when dealing with the admissibility of electronic data/communications. This means state law enforcement partnerships with federal agencies could result in unprosecutable charges if any evidence is derived from the warrantless acquisition of protected data and communications. In practical terms, this may not change much, as the feds will just bring the case to federal court in order to (hopefully) bypass the state's more restrictive constitution.

But, as the Tenth Amendment Center points out, if the new law passes, it will discourage local law enforcement from helping themselves to data harvested by federal surveillance programs.

Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage the amendment could potentially hinder federal surveillance programs that depend on state cooperation and information gathering.

State and local law enforcement agencies regularly provide surveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (AKA “stingrays”), automated license plate readers (ALPRs), drones, facial recognition systems, and even “smart” or “advanced” power meters in homes. Requiring warrants to gather such data would undoubtedly limit the amount of information collected by state and local law enforcement. Information that doesn’t exist cannot be shared with the feds.

If "electronic data" is defined in such a way to include data gathered en masse by electronics, this would institute a warrant requirement for ALPR deployment and would make pen register orders demanding historical cell site data a thing of the past.

The constitutional amendment has a long way to go before it's ratified. Hopefully, it will make its way through the process mostly intact.


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  • icon
    That One Guy (profile), 6 Feb 2017 @ 4:05pm

    A solution to a problem that shouldn't exist

    Much like it shouldn't have ever required the US Supreme Court to remind police that no, they're not allowed to just go browsing on a whim through the devices carried by those they arrest or pull over, the idea that state lawmakers should have to explicitly point out that if police want to go browsing through people's stuff, the fact that it's digital does not mean they can do so without a warrant.

    I can only imagine that this will face heavy pushback by the police who stand to lose their ability to engage in baseless fishing expeditions, and the fact that 'Get a warrant or no search' is seen as a problem for them is a perfect example of how screwed up things have become.

    reply to this | link to this | view in chronology ]

  • identicon
    Thad, 6 Feb 2017 @ 4:13pm

    Good on 'em, and good luck to 'em.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Feb 2017 @ 4:46pm

    Hello Datacenters

    If I were building a server farm, I know which state I would build it in.

    reply to this | link to this | view in chronology ]

  • icon
    Ben (profile), 6 Feb 2017 @ 4:48pm

    ALPR data is personal data?

    I don't quite see how Automatic License Plate Reader data would be considered as part of

    "The person, houses, papers, possessions, and electronic data and communications of every person shall be secure from unreasonable searches and seizures."

    I think it is an invasion of privacy but not electronic data belonging to the individual.

    reply to this | link to this | view in chronology ]

    • identicon
      Cowardly Lion, 6 Feb 2017 @ 11:42pm

      Re: ALPR data is personal data?

      It depends if they associate and store the person (registered owner / keeper) along with the number plate. They would be crazy to do that in Europe at least, as it would then automatically fall under Data Protection laws as personally identifiable information, which has very stringent protections such as who can access the data, time limits, accuracy...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Feb 2017 @ 6:13am

      Re: ALPR data is personal data?

      It is, this reveals how ignorant about this subject you are. Don't feel bad, most Americans are just as ignorant.

      Go back and read about everyone concerned when license plates were being discussed back in the day and why plates were done with random letters and numbers, now they are not, but the original intent of the license plate system was to make it difficult for the public AND the police to just readily know who the vehicle belonged to and required them to get a warrant to find out. Now? It is just a few keystrokes away for officers. We have surrendered our liberty and privacy for nothing more than an officers convenience.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Feb 2017 @ 5:56pm

    I hope the Michigan lawmaker succeeds. Would definitely make Michigan a more appealing location to live in.

    reply to this | link to this | view in chronology ]


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