Michigan voters will see two statewide questions on their ballots. Proposal 2 would amend the Michigan Constitution to protect electronic data and communications in the same way the law protects your home and papers from unreasonable search and seizure.
In an analysis by the non-partisan Citizens Research Council, the group noted Proposal 2 attempts to remove any ambiguity about whether a private citizen’s electronic data is explicitly protected.
Here’s what you need to know about Proposal 2:
Here’s the language you’ll find on your ballot:
State 20-2 Proposal
A proposed constitutional amendment to require a search warrant to access a person’s electronic data or electronic communications
This proposed constitutional amendment would:
· Prohibit unreasonable searches or seizures of a person’s electronic data and electronic communications.
· Require a search warrant to access a person’s electronic data or electronic communications, under the same conditions currently required for the government to obtain a search warrant to search a person’s house or seize a person’s things.
The history behind this proposal.
In 2008, the American Civil Liberties Union submitted a Freedom of Information Act request to the Michigan State Police. The ACLU was asking about the use of data extraction devices such as Cellebrite. Michigan State Police were a client of Cellebrite. There was concern that police were seizing data from cell phones, including documents, emails, photos, phone records, and so on, without warrants. As reported at the time, it could be construed as illegal search and seizure.
After three years of waiting, the State Police informed the ACLU it would cost $544,680 to fulfill the FOIA request. There was a public outcry about the fees and questions about whether police were violating the Fourth Amendment.
The following day, the Michigan State Police issued a statement saying they only use data extraction devices (DEDs ) under certain circumstances. From the statement:
“The MSP only uses the DEDs if a search warrant is obtained or if the person possessing the mobile device gives consent. The department’s internal directive is that the DEDs only be used by MSP specialty teams on criminal cases, such as crimes against children. The DEDs are not being used to extract citizens’ personal information during routine traffic stops.”
But it wasn’t clear that other police agencies employed the same rules about when and how DEDs could be used.
The questions and controversy simmered for nine years.
Then, Republican State Senator Jim Runestad (R-White Lake) shepherded a resolution through the Michigan Legislature, proposing a constitutional amendment clearing up any gray areas for the state and the court’s interpretation of the U.S. Constitution’s Fourth Amendment as it applied to electronic data.
“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,” Senator Runestad explained to Michigan Radio.
In testimony before the legislature, both the Michigan State Police and the American Civil Liberties Union stated their support of the proposal.
How it got onto the ballot
The proposal was approved unanimously by both chambers of the legislature.
Find our explanation of Proposal 1 here.