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Michigan Senate Leadership Kills State Privacy Amendment With National Implications

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LANSING, Mich. (Sept. 15, 2016) – Senate leadership has killed a resolution that would have given voters an opportunity to put “electronic data and communications” on the same level as “persons, houses, papers and possessions” in the state constitution. The amendment would have also set the foundation to help block a small but intrusive practical effect of federal spying within the state.

Rep. Jim Runestad (R-White Lake) introduced House Joint Resolution N (HJRN), along with 30 bipartisan co-sponsors last spring. Had the legislature approved the measure, voters would have had the opportunity to alter Article 1, Section 11 of the Michigan state constitution in the following manner (changes in italics added):

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 communications 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.

The Michigan house overwhelmingly approved HJRN in June by a 107-1 vote. But the measure ran into trouble in the Senate. The Sen. Mike Kowall moved to have the normal process suspended and place HJRN on general orders, meaning it could go straight to the Committee of the Whole (the entire Senate) for further consideration instead of going through a standing committee. But the process stalled from there.

According to activists in Michigan, Senate Majority Leader Sen. Arlan Meekhof didn’t want to bring the bill before the Committee of the Whole and essentially buried it. Activists say they launched a phone call and email blitz urging Meekhof bring the bill up to no avail. One activist said his office told her, “Meekhof has his attorneys looking at this bill to make sure that it is Constitutional – that they do not want to sign on a bill that is unconstitutional, so that is what he is doing for the people he represents.”

The constitutional questions Meekhof had remain unclear. Missouri voters approved an almost identical constitutional amendment in 2014. There were no constitutional questions raised.

NATIONAL IMPLICATIONS

The language in HJRN was similar to Missouri Amendment 9, which passed last year with an overwhelming 75 percent of the vote. Supporters of privacy in Michigan had hoped to duplicate Missouri’s success with HJRN.

Missouri voters approved Amendment 9, setting the stage for similar initiatives in other states. Every state except Delaware can amend their state constitution through a legislatively referred referendum. Missouri offers a blueprint. We have the potential to blanket the country with constitutional provisions specifically extending privacy protection to electronic information and data. This would ensure state-level respect for privacy rights and address a practical effect of federal spying, regardless of how things play out in Congress or in federal courts.

The Mackinac Center for Public Policy, a nonprofit research and educational center based out of Midland, endorsed HJRN with the following statement released by the organization’s Executive Vice President Michael Reitz:

The right of individuals to be secure from unreasonable searches and seizures is fundamental, which is why it is enshrined in both the U.S. and Michigan constitutions. Constitutionally enshrined rights should not be eroded just because the march of progress makes them easier to infringe…

The resolution has wide bi-partisan support, and the Mackinac Center for Public Policy is happy to lend our voice in support of this effort.

FEDERAL PROGRAMS

While a state constitutional amendment only binds state agencies and not the federal government, the amendment would have also set the foundation to help protect Michiganians from a practical effect of federal spying.

By including “access” to “electronic data and communications” under the same warrant requirements – describing them, probable cause, and supported by oath or affirmation – as “person, houses, papers, and possessions,” it would have made such data gathered by federal agencies such as the NSA or FBI and shared with state and local law enforcement more likely to be inadmissible in state criminal proceedings. This protection would have remained in place for Michiganians even if federal courts ultimately put the seal of approval on warrantless data collection by the NSA and other federal agencies.

That the NSA and other federal agencies pass illegally gathered information to state and local law enforcement isn’t mere speculation. We know for a fact it happens.

As revealed in a 2013 Reuters report, the secretive Special Operations Division (SOD) is “funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.”

Documents obtained by Reuters show that these cases “rarely involve national security issues,” and that local law enforcement is directed by SOD to “conceal how such investigations truly begin.”

Reports in the Washington Post and USA Today last fall documented how “the FBI and most other investigative bodies in the federal government” are regularly using a mobile device known as a “stingray” or “hailstorm” to intercept and collect electronic data without a warrant. Local and state police “have access through sharing agreements.” This issue is especially pertinent for Michigan residents as it was revealed last year that Oakland County, MI is using a hailstorm device with absolutely no transparency and accountability from law enforcement.

The state of Michigan missed an opportunity stop the federal government from violating the Constitution and basic privacy rights, providing a mechanism to keep illegally-gathered data out of state courts.