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Michigan Ballot Measure Would Help Protect Electronic Data from Warrantless Spying

LANSING, Mich. (Feb. 2, 2017) – A resolution introduced in the Michigan House would put before voters a state constitutional amendment to protect electronic communications and data from the prying eyes of state and local law enforcement. The amendment would also effectively block a small but intrusive practical effect of federal spying within the state.

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 communciations 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.

If HJRC is approved by a majority of two-thirds in the House and the Senate, the amendment would be considered by the voters in the Nov. 2018 general election. The same legislation was introduced by Rep. Runestad last year and approved by the House in overwhelming fashion, but died in the Senate without receiving a vote.

The language is similar to Missouri Amendment 9, which passed last year with an overwhelming 75 percent of the vote.

While a state constitutional amendment only binds state agencies and not the federal government, the amendment will protect Michiganians from a practical effect of federal spying.

IMPACT ON FEDERAL 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. The amendment could also potentially prohibit state and local agencies from actively assisting in warrantless surveillance operations.

Additionally, the amendment would arguably prohibit what NSA former Chief Technical Director William Binney called the country’s “greatest threat since the Civil War.”

By prohibiting state agents from “accessing” warrantless electronic data or communication, it would bar prosecutors from using such data gathered by federal agencies such as the NSA and shared with state and local law enforcement. This protection would remain in place in Michigan even if federal courts ultimately approve warrantless data collection by the NSA and other federal agencies.

Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases “rarely involve national security issues.” Almost all of the information involves regular criminal investigations, not terror-related investigations.

In other words, not only does the NSA collect and store this data. using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.

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HJRC was referred to the House Committee On Law And Justice. The committee must approve the bill before it can receive a full House vote.