By Shane Trejo
The Michigan House overwhelmingly approved a resolution Thursday that would give voters an opportunity to put “electronic data and communications” on the same level as “persons, houses, papers and possessions” in the state constitution. If ultimately passed, it would also set the foundation to help 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), along with 30 bipartisan co-sponsors, on Mar. 26. If approved, voters will have 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.
HJRN was approved in the State House on Jun. 2, passing by a 107-1 vote. It previously passed the House Criminal Justice Committee by a unanimous 6-0 vote last year.
The language in HJRN 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.
If Missouri voters approve Amendment 9, it will set 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.
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While a state constitutional amendment only binds state agencies and not the federal government, the amendment will 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 makes 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 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 HJRN such an important reform.
Now that it passed the House, HJRN will move on to the Senate. It will first need to pass out of at least one committee before the full Senate can consider it. If it passes both Houses, it will bypass the Governor and go directly to the ballot for a vote in the November election.
Michigan residents are urged to contact their Senate and voice their support for HJRN. Find contact information at this link.