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Michigan Voters Approve Constitutional Amendment to Protect Electronic Data and Communications

After all the wrangling over the Office of the President and control of Congress in 2020, it was refreshing to note that several states approved liberty-oriented ballot measures. Four more states now allow recreational marijuana, and Oregon decriminalized possession of small amounts of cocaine, heroin, and meth.

Michigan joined 13 other states in explicitly adding “electronic data” and “electronic communications” to the list of items requiring a search warrant before being searched or seized by law enforcement. Michigan was only the third state, behind Missouri in 2014 and New Hampshire in 2018, to include these protections in the state constitution by ballot measure. Though the process for doing so took some time, it is an example of responsive democracy in action.

In the digital era, law enforcement agencies have developed strategies for collecting as much data on citizens as possible, ostensibly for the purpose of keeping communities safe. But when doing so, they must ensure not to run afoul of privacy protections in the U.S. and state constitutions. However, these constitutions were written long before even the telegraph was invented, and courts have struggled to find a reasonable balance between privacy and safety as a host of new technologies have emerged.

In 2014, the U.S. Supreme Court decided in Riley v. California, 573 U.S. 373 (2014), that a warrant is required to access a suspect’s cellphone, and in 2018 with Carpenter v. United States, 138 S. Ct. 2206 (2018), the Court decided that agents needed a warrant before obtaining customer location data from cellphone companies. But this has not stopped federal agencies from trying to obtain this information from other sources, such as Google and relatively obscure private third-party vendors that collect, store, and sell immense amounts of information on virtually every person in America. And a lack of federal leadership on this issue has citizens turning to their states for protection.

For Michigan, this battle started in 2008. That’s when the American Civil Liberties Union (“ACLU”) submitted a Freedom of Information Act request regarding the Michigan State Police’s use of data extraction devices (“DEDs”), such as Cellebrite. This request was intended to help determine whether the State Police were using DEDs to search electronic devices like tablets and cellphones without a warrant.

After a three-year delay, the State Police informed the ACLU that it could have the documents if it coughed up over a half-million dollars in fees. This led to public outcry over both the fees and the likely violations being covered up.

In response, the State Police issued a statement disavowing the use of DEDs except in criminal cases where a warrant had been obtained. However, it was unclear whether other agencies were so scrupulous.

This controversy grew until this year when Michigan Senator Jim Runestad (R-White Lake) shepherded a resolution through both chambers of the state legislature and got the constitutional amendment on the ballot for November. Ultimately, 88% of voters, over 3.8 million of them, approved the amendment.

Now in addition to a citizen’s person, houses, papers, and possessions, electronic data and electronic communications are secure from warrantless searches in Michigan. “They would not be able to go snooping through the personal communications and data of private citizens willy-nilly from this point forward after the passage of this. It’s going to require a warrant in every case,” said Runestad.

Michigan citizens, however, should not get complacent in the face of this victory. Protecting rights such as these requires persistent vigilance. 

 

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