LANSING, Mich. (Sept. 18, 2019) – This week, a Michigan Senate committee will hold a hearing on a bill that would put a state constitutional amendment on the ballot to elevate the privacy of their electronic communications and data to the same level as “persons, houses, papers and possessions.” The following letter of support from the Tenth Amendment Center was submitted to the committee.
Chair Pete Lucido and members of Senate Judiciary Committee,
SJRG would take an important step forward in protecting basic privacy rights in Michigan by putting electronic data on the same level as “persons, houses, papers and possession.”
Practically speaking, including “electronic communications and data” in the state’s constitutional prohibition on unreasonable searches and seizures would require state and local police in Michigan to obtain a judicial warrant, supported by probable cause, before accessing cell phones and other electronic devices. It would also set the foundation to help prevent law enforcement from accessing private information through third parties.
Enshrining these fundamental protections in the state constitution would make electronic data privacy the default setting in Michigan. Without it, electronic privacy would have to be repeatedly established, protected and defended by the state legislature with the development of every new surveillance technology. It would also place electronic privacy at the whim of law enforcement officers, judges and bureaucrats.
To quote a New Hampshire lawyer writing in support of a similar amendment that passed in that state, “State legislators should not play an endless game of Whack-A-Mole against threats to their residents’ privacy. Relying exclusively on piecemeal statutes or search and seizure provisions written before the dawn of the internet is no way to protect privacy.”
This amendment would also establish robust privacy protections in Michigan even if the U.S. Supreme Court ultimately construes electronic privacy more broadly. It is unwise to leave the privacy of Michiganders in the hands of federal judges.
The Tenth Amendment Center enthusiastically supports this measure. Surveillance technology has advanced much faster than the legal framework surrounding it. The amendment language in SJRG would create a foundation that would protect electronic data in the future no matter where the technology takes us.
