The Michigan House and Senate passed a resolution that would place on the November ballot a constitutional amendment barring the search and seizure of private electronic data without a warrant. Both chambers adopted the resolution unanimously, the Senate on June 11 and the House on Wednesday.
The resolution had been introduced twice before but never adopted by both chambers prior to Wednesday.
“Everyone saw the value of protecting our personal, electronic communications,” said state Sen. Jim Runestad, the White Lake Republican who has introduced the legislation for the past three sessions.
Missouri passed similar legislation in 2014 with 75% support from voters and New Hampshire did the same in 2018 with 81% of the vote.
“I believe it will pass way over 80% here in the state of Michigan,” Runestad said. “On the state level, what it would prohibit is gathering and sharing the information without a warrant."
The constitution currently bars unreasonable search seizures of a person, house, papers or possessions without probable cause and a sworn warrant that describes the information. The amendment, if approved by voters, would expand those rules to include electronic data and communications.
The ballot language, which still is being drafted, would apply to Michigan police agencies, not federal law enforcement, and include exceptions for exigent or emergency situations, Runestad said. It would bar state police agencies from gathering electronic data on behalf of federal law enforcement.
Michigan law enforcement agencies generally obtain a search warrant or subpoena prior to accessing an individual’s private electronic data, but the proposal would enshrine that practice in the state constitution.
"The courts are coming along on that but enshrining it in our constitution is a very important step," said Shelli Weisberg, political director for the ACLU of Michigan. Weisberg has been working with Runestad on the resolution for several years.
Most police agencies need a warrant or subpoena to get access to data through a service provider, according to the Michigan State Police and Bob Stevenson, executive director for the Michigan Association of Chiefs of Police.
“I’m not aware of hardly any place where you could get electronic communication without a warrant,” Stevenson said.
Michigan State Police officials agreed, but noted narrow exceptions apply in the case of exigent or emergency situations, such as kidnapping or murder, said Lori Dougovito, a spokeswoman for the agency.
"Even in that instance, a specific process is required," Dougovito said.
Michigan State Police have Stingray and Hailstorm technology, cellphone simulator technology used largely to collect location data, but the technology is used only with a search warrant per official orders, Dougovito said.
The Oakland County Sheriff's Office also uses Hailstorm, but Sheriff Mike Bouchard said department policy requires a search warrant prior to its use. Over the years, Bouchard said, the reach of the technology, largely used to locate a suspect in life-threatening situations, has been exaggerated to appear to be a "massive technical intrusion."
"We use a search warrant 100% of the time," said Bouchard, who noted he did not oppose the ballot question. "What I am opposed to is people making completely false statements as a reason this needs to pass ... Let’s be honest about what it actually does and covers.”
As recently as 2018, the U.S. Supreme Court ruled in a Detroit case that law enforcement generally need a search warrant to access a cellphone owner’s location without their permission. The decision came after robber Timothy Ivory Carpenter objected to federal prosecutors and agents accessing 127 days of his cellphone records to gauge his location history.
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