LANSING, Mich. (May 28, 2015) – A Michigan House committee unanimously approved a resolution Tuesday that 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 N (HJRN) was introduced by Rep. Jim Runestad (R-White Lake) on March 26 along with 30 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.
The House Criminal Justice Committee approved HJRN unanimously by a 6-0 vote. If it passes, the amendment could be approved by the voters in the Nov. 2016 general election.
The language is similar to Missouri Amendment 9, which passed last year with an overwhelming 75 percent of the vote. Michigan lawmakers hope to duplicate Missouri’s success with HJRN.
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.
By prohibiting state agents from “accessing” warrantless electronic data, it makes such data gathered by federal agencies such as the NSA and shared with state and local law enforcement inadmissible in state criminal proceedings. This protection will remain 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 can’t stop the federal government from violating the Constitution and basic privacy rights, but HJRN would provide a mechanism to keep illegally gathered data out of state courts. That is what makes it such an important reform.
Now that it passed through the House Criminal Justice Committee successfully, HJRN will go to the state House for a full vote. Because it is a proposed Constitutional amendment, it will need two-thirds of the body to approve it in order to pass.