Michigan Ballot Proposal 2: Search Warrant for Electronic Data Amendment
Michigan’s Proposition 2 would require police to obtain a warrant to search electronic communications data, placing the information under constitutional protection from unreasonable search and seizure.
There may be added costs for requesting, issuing, and executing more complicated technology warrants, but this would have an insignificant fiscal impact on Michigan.
Proponents Arguments For:
As digital technology has evolved, it has come to be the home for our personal and private information, replacing paper documents stored in file drawers or safes. Supporters argue that the government should have to meet the same standards and processes for accessing our personal information in digital form as the constitution set out for our information when it only existed in hard copy. Proponents say that as our lives are continually exposed to technology, it is imperative that digital communications privacy be enshrined in the constitution.
Opponents Arguments Against:
There are no official or published arguments against Proposal 2. Various Michigan law enforcement officials have told the press they either support or do not oppose the measure.
Outside of a few exceptions, courts in the United States have tended to require warrants for any search of digital content. The legal question around digital data was generated in part when police began using GPS devices to track locations without warrants. And a seminal case, Riley v. California, questioned whether the entire contents of unlocked cell phones were allowed to be searched during the course of an arrest, as police are legally allowed to search the immediate contents of the person during an arrest. The courts have struck down both of these practices as unconstitutional and ruled that police need a warrant to search devices containing digital content because they contain so much information that may or may not be relevant to the activity at hand.
While warrants for digital information have become the norm, there have been court cases, as recently as 2018, in which location tracking without a warrant was ruled unconstitutional—exposing the fact that these practices may still occur, despite police claims to the contrary.
As web technology develops and people routinely share information with third-party providers, the question becomes whether that data is public and, if it is not, how a warrant should be written and executed. Police argue, in particular, that location data should be public, claiming it is the “network equivalent of public observation” which is not protected by warrant. Similar questions may arise around social media and other forms of data.
Should the warrant be written to obtain all of the information, then filtered and sorted by the prosecution manually despite the extensive manpower required? Do digital searches for keywords represent the completion of the search? Should the police search the hardware such as servers and computers, which opens up possibilities of “in plain sight” expansion of their interest? Or should third-party providers with a narrow mandate, and no obligation to report other information they might see, prepare data and then send files to the police? Does a warrant to search a house include all of the devices in the home or how specific does a warrant in the digital realm need to be? Does clicking on police generated URL advertising illegal activity justify a warrant?
These questions and more will have to be continually considered by courts and legislators but what is certain is that police will continually push to have access to more data. Given the importance of privacy, it is preferable to err on the side of protecting it and using practice in the real world to work out what exceptions are constitutional.