Measure Would Protect Electronic Communications From Warrantless Search

A proposed state constitutional amendment that would protect Michigan residents from unreasonable searches and seizes involving electronic records and communications was advanced to the full Senate by a Senate Judiciary Committee at a hearing on Thursday.

Sen. Jim Runestad, R-White Lake, is the lead sponsor of Senate Joint Resolution G, which could change the Michigan Constitution. In a statement, he said: “Court decisions across the nation have upheld the protection of electronic property rights. We should extend that protection here in Michigan. ...”

Pacific Legal Foundation attorney Daniel Wioslaw called the resolution a “step forward for property rights, privacy, and the rule of law,” in a letter submitted in support of it.

The Michigan Constitution specifies that the “person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures.” According to a Senate Fiscal Agency summary, the resolution would expand that protection to also make it unlawful “to access electronic data or electronic communications” without a warrant.

The resolution would also require probable cause and a warrant to gain access to electronic data or electronic communications.

The Pacific Legal Foundation said that the test most courts have relied upon to determine whether a warrant should be required is what most Americans think should reasonably be considered private.

“Thus, in the wake of leaks about intrusive government surveillance techniques, these societal expectations of privacy can deteriorate, resulting in a lower standard of protection under the prevailing judicial standard,” the Pacific Legal Foundation stated in a letter. “Reform language like that in SJR G would sidestep the need to rely on this self-defeating standard by clearly establishing that a warrant must be acquired to access electronic data and communications. Thus, a Michigan court need not guess about whether a majority of Americans consider emails, social media messages, or browser search histories to be private.”

The Pacific Legal Foundation wrote that the U.S. Supreme Court clarified in a 2014 case that a warrant must be acquired to search through a person’s cellphone, in the absence of consent. That was more than three decades after the widespread use of cellphones began and six years after Apple released its first iPhone, the Pacific Legal Foundation stated.

If approved by a two-thirds vote of each house of the Legislature, the joint resolution would be placed on the next statewide general election ballot for a vote of people.