Michiganders overwhelmingly OK Proposal 2, enshrining greater protection for electronic data into law

By Scott McClallen | The Center Square 11 hrs ago

(The Center Square) – Voters on Tuesday appear to have approved Proposal 2 by a landslide, enacting a privacy measure to require a warrant for law enforcement to search and seize electronic documents.

With approximately 50% of precincts reporting by 1 a.m., Prop 2 had garnered 88% support.

The vote follows a trend of American voters showing up to show they care about privacy.

A 2015 Pew Research survey found 88% of Americans say it’s important that they not have someone watch or listen to them without their permission.

Missouri and New Hampshire voters approved similar amendments by, respectively, 75% and 81% margins of voter approval.

The Michigan State Police and Bob Stevenson, executive director for the Michigan Association of Chiefs of Police, told The Center Square most police agencies need a warrant or subpoena to access data through a service provider.

“This would not alter the operation of Michigan Police Agencies,” Stevenson wrote in an email. “The courts have already defined when we need to get warrants, and this proposal puts into the State Constitution the current practices.”

MSP Public Affairs Director Shanon Banner told The Center Square the passage of the privacy measure wouldn’t impact their operations “as we currently follow best practices that include obtaining a search warrant.”

“Americans shouldn’t be forced to choose between using new technologies and protecting their privacy,” sponsor state Sen. Jim Runestad, R-White Lake, said in a statement. “It is long past time that our state extends the same basic protections to our electronic data that have existed for our paper data for centuries.”

in a June floor speech, Runestad said“In 2020 privacy still matters. The Fourth Amendment still matters. We don’t know what technological advances will come next, but one thing is for sure – that after 246 years to us Americans, our right to privacy still matters.”

One such technology is a cell-site simulator, also called a Stingray, that mimics phone towers and connects to nearby phones and transmit locations, which can be deployed to identify users’ information.

Law enforcement in Michigan used Stingrays about one time every three days in 2014, according to the American Civil Liberties Union (ACLU).

Courts have previously protected Fourth Amendment privacy rights but they sometimes lag by decades.

The Supreme Court in 2018’s Carpenter v. United States ruled the Fourth Amendment applied to modern technology. However, cell phones have existed for over 40 years and may still be monitored by law enforcement personnel without a search warrant.

Merissa Kovach, a policy strategist at the ACLU, said the amendment’s goal is to be proactive and define law enforcement standards accessing electronic data instead of playing “whack a mole” with every new technology.

Karen Gullo, a senior media relations specialist at the San Francisco-based Electronic Frontier Foundation, previously told The Center Square that law enforcement should obtain a warrant before accessing people’s electronic data and communications.

“The electronic data stored on our devices is a window into our entire lives – where we go, what we say to co-workers and friends, who our family is, where we bank and shop, what our personal documents say, and what our political beliefs are,” Gullo wrote in an email.

Gullo cited Riley v. California in 2014 in which The Supreme Court described the requirements for searching a cell phone.

“In a unanimous decision by Chief Justice [John] Roberts in the 2014 case, the court wrote, ‘Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.’

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