A just-passed Michigan constitutional amendment reinforces the principles of the Fourth Amendment to the U.S. Constitution. The Fourth Amendment protects our “persons, houses, papers and effects” against unreasonable searches and seizures. It mandates probable cause warrants before the government can search our possessions. But should it cover our electronic data and communications? Acting under their own state constitution, Michigan voters answered with a resounding “Yes.”
The measure’s background is instructive. In 2008, the ACLU submitted a Freedom of Information Act request to the Michigan State Police asking about its use of data extraction devices. Were the police pulling documents, emails, photos and calling metadata from suspects’ cellphones?
After a three-year wait, the state police agreed to answer the FOIA request. But first, the police said, the ACLU would have to pay the $544,000 cost for the government to fulfill the request. The state police did admit that “specialty teams” on criminal cases might use the technology. The answer for other law enforcement agencies was not clear.
The predictable public reaction buoyed the efforts of Sen. Jim Runestad, a Republican, who persuaded the state legislature to pass a constitutional amendment to ban warrantless snooping of electronic data and communications. In time, the Michigan State Police and the ACLU came together, vocally supporting the measure, which passed last Tuesday by a whopping 88.7 percent.
As heart-warming as this story is to surveillance reformers, it highlights the dangerous possibility that this principle holding our electronic data to be our “effects” is not currently respected by the federal government. The Snowden revelations shocked many with the extent to which the NSA was hoovering up Americans’ data. And today, apologists for the Intelligence Community maintain that the government has authority to surveil Americans under Executive Order 12333 without a statute or congressional oversight.
Do we need a national version of the Michigan initiative?