Michigan Voters Demand That Police Get Warrants for Electronic Data

Reason ^ | 11.4.2020 | Scott Shackford

[nickcarraway]

Constitutional amendment overwhelmingly passes.

Michigan voters Tuesday night had a message for police: Get a warrant. Yes, for their phones, too.

Voters overwhelmingly approved Michigan Proposal 2. The referendum, put to the ballot by lawmakers, amends the state constitution to add "electronic data and electronic communications" to the state's search and seizure laws.

With 88 percent of the vote counted, Michigan voters approved the protections. The measure passed with 88 percent of the vote, more than 3.8 million votes of support.

The relevant part of the state's constitution will now read:

The person, houses, papers, possessions, and electronic data and electronic communications of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things or to access electronic data or electronic communications shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.

Ballotpedia notes that the changes passed unanimously through both Michigan's House and Senate in June before being sent to voters for approval.

It's another nice little reminder that there were a lot of liberty-minded ballot initiatives that did very well last night that shouldn't be ignored as so many people obsess over who will control the White House and Congress.

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[nickcarraway]

Wouldn't law enforcement have to get a warrant even before this amendment passed? I am starting to wonder if this is a Trojan Horse? Will this make it more likely that judges will rubber stamp any search?

[FLT-bird]

The Trump team could choose to chalk the election in Michigan state court.

The Michigan Supreme Court is elected. It currently has a Republican majority........

[Alberta's Child]

The intention is good here but the Michigan amendment may only result in chaos and confusion in legal proceedings.

In many cases no warrant is needed to get electronic data — for a very important reason that even CLARENCE THOMAS of all people has cited in Supreme Court opinions to support his contention that this form of data is usually not covered by the Fourth Amendment of the U.S. Constitution.

If you look at the fine print in the terms and conditions of almost any of your activity that generates electronic records — such as your mobile phone, internet service, etc. — you will find that you don’t even own those records. In accepting these terms, you end up agreeing to turn them over to the mobile phone carrier, internet service provider, etc. They make a lot of money selling your data to others, in fact.

[Svartalfiar]

If you look at the fine print in the terms and conditions of almost any of your activity that generates electronic records — such as your mobile phone, internet service, etc. — you will find that you don’t even own those records. In accepting these terms, you end up agreeing to turn them over to the mobile phone carrier, internet service provider, etc. They make a lot of money selling your data to others, in fact.

This isn't just about whatever metadata the phone company might keep on all the little people - it also applies to your physical phone. ATT doesn't own that, and I highly doubt their ToS claim they can pull any data off of it that they please. Likewise, your ISP may keep some records of your internet activity, but they have zero access to your browser's saved logins and settings and such. It also covers any ambiguity on laptops, hard drives, and any other electronics.

[Beagle8U]

They should have called it “The Kiddy porn protection act”.

[nickcarraway]

How so?

[OldMissileer]

Wouldn't law enforcement have to get a warrant even before this amendment passed?

No. For years the Michigan State Police have been stopping vehicles and then copying cell phones without cause or warrant. I remember a few years ago some court ruling that allowed the continuation of that practice.

[nickcarraway]

That is messed up.

I'm not crazy about laws that "give us" rights we are already supposed to have.

[Hostage]

Stopping for what kinds of reasons? Speeding?

And how is a phone ‘copied’? My phone has a thumbprint security entry.

[Wuli]

The Constitution says:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

I note in particular the inclusion of their “papers” as under the Constitutional privacy protections.

“Papers” - letters, documents, writings and notes contained a persons “communications” outside of face-to-face speech when the Constitution was written. I believe the assumed protection the founders offered in that were a persons private communications.

I know Clarence Thomas would disagree and I respect him a lot, but I think our modern personal electronic communications would be covered by the founders intent in the Constitution as a modern form of what they saw as our “papers”.

[Wuli]

I want our laws on that changed.

I want ALL electronic communication, landline, cell or Internet to be considered private except as where a person agrees without any form of coercion to only use of (a) the data but (b) not the content, again unless specific release of the content is consented to. I want the law to mandate Internet website owners can only deny use of their service if permission for them to use the users content is granted, but if granted that grant provides no release for use of the data without the users unforced expressed consent.

I want the law to make a telephone communications, whether landline or cell phone (including text), to be private communication and which may never be used (data or content) by anyone without the unforced express consent of the persons involved.

Yes, I want the telecommunication world to be forced to build a different business model that is NOT built on selling our data or content to advertisers or anyone else, without our unforced expressed agreement. Advertising should have to go back to the days of newspapers, radio and TV, where the ad is “broadcast” in the medium but there is no tracking ability as to who actually got it and who read it. It was good enough before without all our data being sold, and it would work again if they were forced into it.

[zeugma]

And how is a phone ‘copied’? My phone has a thumbprint security entry.

... and yet your thumb is right there, which they will force you to use to unlock it.

[Svartalfiar]

I want ALL electronic communication, landline, cell or Internet to be considered private except as where a person agrees without any form of coercion to only use of (a) the data but (b) not the content, again unless specific release of the content is consented to. I want the law to mandate Internet website owners can only deny use of their service if permission for them to use the users content is granted, but if granted that grant provides no release for use of the data without the users unforced expressed consent.

How exactly are you differentiating between "data" and "content"?
How do you draw a line between the company's data and yours? You go visit some kiddie porn site - you're just giving your ISP an IP address, their system is what actually retrieves the illegal data and then passes it on to you. Do they own the logs of what their servers are getting and sending to you? Or do you somehow "own" them?
Who owns the call metadata for your phone? You? The guy who called you / you called? The company that's linking you together? Sure, the actual speech/text can easily be argued to be owned by end parties, but the fact that the phone company is transmitting/sending data from/to certain numbers, is much harder to argue that you own all the connecting info. The concept is similar to a detective watching through your window to see that you're making a phone call, or seeing what goes in your mailbox, but not hearing the conversation or reading the actual mail.


I want the law to make a telephone communications, whether landline or cell phone (including text), to be private communication and which may never be used (data or content) by anyone without the unforced express consent of the persons involved.

Again, you have to look at and define who owns what. If you, the end user, own every single bit of related information, how does the company troubleshoot issues? How do they manage Quality of Service?

What about aggregated data? Much of the data mining doesn't care about you, it cares about y'all. Groups of people are what drive profits, not single individuals. Who owns data like which cell towers are being heavily trafficked? Which ones have no one using them? The base data to make such observations is that personal data that you said you want to be completely private and owned by the consumer.

[Svartalfiar]

And how is a phone ‘copied’? My phone has a thumbprint security entry.

... and yet your thumb is right there, which they will force you to use to unlock it.

There's also programs that can virtually take an image of the device when plugged in, and don't require a thumb. Of course, newer software tends to prevent USB access without screen unlock, but it's always a matter of bigger bullets and heavier armor. And disk drives can be physically copied, nothing virtual - and then it doesn't matter it you have a three strike = wipe set up, they have unlimited physical copies. Although this doesn't work with solid state drives, and I dunno if there's any way to physically copy those without going through the normal read/write IO.

[Wuli]

It can be done as the consumer’s private contract, where the privacy aspects are written for the consumers protections, not the wishes of the telecom/webpage owners to make additional moneys beyond the agreed service charges by selling the data or content related to the consumer, without the consumers unforced expressed consent. The law can require such provisions to be in the consumers contract.

Under such a law the data and the content is part of the private agreement with the consumer, with the consumer agreeing or not agreeing to specific uses of the information.

[Wuli]

“What about aggregated data? Much of the data mining doesn’t care about you, it cares about y’all. Groups of people are what drive profits, not single individuals. “

Again, you are referring to the current business model, which it is well known is not essential for the running of the Internet.

There are plenty of web site owners with whom a paid subscription is required, and among them there are plenty who do not sell your data to anyone. They make profits, just not by selling your data.

FB and Google pretend your use is “free” and we know that is a lie. You are not their customers, you are a product they sell.

That is their business model, but it is not a necessity for such services to operate. It’s just their choice.

Just look at this site you are on right now!!!

[Svartalfiar]

Again, you are referring to the current business model, which it is well known is not essential for the running of the Internet.

Sure, charging or requesting donations works for some websites, but how is that supposed to pay for every single site on the internet? Do you really think any big company is going to suddenly tell all their users they're being charged $5 a month, and hope they all stay? Do you really think YouTube or FaceBook would make enough $$ off of donations to survive? Once more than a couple sites start doing this, people are gonna start weaning themselves off of them and just ignoring it all.

I'm not arguing that the "free" services are essential for the internet, But they're a major part of it and people would get mad if the companies took that away from them, not just the companies themselves.

[Wuli]

“Do you really think YouTube or FaceBook would make enough $$ off of donations to survive? “

Yes. 1. Paid subscription sites all ready work. 2. Ads would still be available on sites, and give revenue for sites, just as ads worked for news (print) and broadcast TV media before, without the collection of personal data or sale of it. 3. And with that note operations costs are smaller (per “customer”) for internet based media than either broadcast or cable TV or print media.

Yes, the Internet CAN work and survive without the current personal data collection business model.