BISMARCK, N.D. (Jan. 23, 2023) – A resolution filed in the North Dakota Senate would put a state constitutional amendment on the ballot to elevate the privacy of a person’s electronic communications and data to the same level as “persons, houses, papers and possessions.”
A coalition of six Republicans filed Senate Concurrent Resolution 4006 (SCR4006) on January 12. If approved, the resolution would allow voters to consider an amendment to the North Dakota State Constitution that would add the following highlighted words to Art. 1 Sec. 8.
“The right of the people to be secure in their persons, houses, papers, electronic data and electronic communications, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing as may be the place to be searched, the persons and things to be seized, and the electronic data or communication to be accessed.”
Language in the Amendment was modeled on Missouri Amendment 9, which passed with an overwhelming 75 percent of the vote in 2014. Similar amendments have passed in Montana, Michigan, and New Hampshire.
As the ACLU pointed out in an article supporting the New Hampshire amendment, without protections explicitly enshrined in the state constitution, the right to electronic data privacy exists at the whims of state legislators.
“Without state constitutional protections, privacy is not the … default setting. Rather, it needs to be repeatedly established, protected, and defended by the state legislature each time a new surveillance technology or method is established, which is a common occurrence in our modern technological world. 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.”
Practically speaking inclusion of electronic communications and data in the state’s constitutional prohibition on unreasonable searches and seizures means state and local police in North Dakota would be required to obtain a judicial warrant, supported by probable cause, before accessing cell phones and other electronic devices regardless of any legislative statute. It would also set the foundation to help prevent law enforcement from accessing private information through third parties.
IMPACT ON FEDERAL SURVEILLANCE
While a state constitutional amendment only binds state agencies and not the federal government, the amendment would also set the foundation to help protect North Dakotans from the ever-growing federal surveillance state.
The passage of the amendment would create the legal framework to limit state and local surveillance and minimize the amount of personal information collected and stored by state and local governments. By doing so, it would also impact federal surveillance programs that depend on state and local support.
The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE.
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
In practice, local data collection using ALPRs, stingrays, drones and other spy technologies create the potential for the federal government to track the movement of millions of Americans, and obtain and store information on millions of Americans, including phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.
In a nutshell, without state and local assistance, the feds have a much more difficult time gathering information. When the state limits surveillance and data collection, it means less information the feds can tap into. This represents a major blow to the surveillance state and a win for privacy.
By including access to “electronic communications and data” under the same warrant requirements – describing them, probable cause, and supported by oath or affirmation – as “person, houses, papers, and possessions,” it would make 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 North Dakotans even if federal courts ultimately put the seal of approval on warrantless data collection by the NSA and other federal agencies.
Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known as the Special Operations Divisions and the cases “rarely involve national security issues.” Almost all of the information involves regular criminal investigations, not terror-related investigations.
In other words, not only does the NSA collect and store this data, using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.
Despite the revelations by Edward Snowden, NSA spying has continued.
This is “the most threatening situation to our constitutional republic since the Civil War,” former NSA technical chief William Binney said.
SCR4006 has been referred to the Senate Judiciary Committee, with a hearing scheduled for Jan. 25. It must pass by a majority vote before moving forward in the legislative process.