Michigan Passes Warrant Requirement for Electronic Data Searches

  • Privacy protections part of 13 state constitutions
  • Legislature put it on the ballot in unanimous vote

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Michigan voters approved a state constitutional amendment that will require state and local law enforcement officers to get a warrant before searching through suspects’ electronic data.

The vote will make Michigan the 13th state to include privacy protections in its constitution, and the third state to do so via ballot measure following Missouri in 2014 and New Hampshire in 2018, according to a National Conference of State Legislatures analysis.

“The federal courts have been pretty slow to keep up with emerging technology, especially surveillance technology,” said Merissa Kovach, policy strategist with the American Civil Liberties Union of Michigan. This new protection means that “when there’s new technology down the road that we can’t even imagine existing, we’re not going to have to wait for years and years for a case to work its way through the courts.”

The amendment prohibits the unreasonable search and seizure of “electronic data, and electronic communications,” clearing up some potential gray areas for law enforcement officers who previously could have been tempted to search a criminal suspect’s text messages, online chatroom participation or internet search history without first getting approval from a judge, Eric Lupher, president of the nonpartisan Citizens Research Council of Michigan, said at an October news conference on the measure.

Americans are protected from unreasonable searches and seizures under the Fourth Amendment to the U.S. Constitution, but that protection evolved based on federal court rulings. Michigan’s amendment would add an extra layer of certainty, Lupher said.

Photographer: John Moore/Getty Images
A voter fills out his ballot in Lansing, Mich., on Nov. 2, 2020. The state considered a measure to require law enforcement to obtain a warrant for electronic data.

In the U.S. Supreme Court’s 2014 Riley v. California decision the justices required a warrant to access a suspect’s cell phone. Then, in 2018, the court ruled inCarpenter v. United States that police must get a warrant to access cell phone tracking data. But whether these decisions extend protections to myriad other forms of electronic data remain a hot topic on the cutting edge of federal privacy and criminal law.

The Michigan measure that placed the issue on the ballot (Senate Joint Resolution G) was passed unanimously.

To contact the reporter on this story: Alex Ebert in Columbus, Ohio at aebert@bloomberglaw.com

To contact the editors responsible for this story: Meghashyam Mali at mmali@bloombergindustry.com; Tina May at tmay@bloomberglaw.com

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