What Michigan should know about Proposal 2 to require warrants for digital data

Michigan voters next week will decide whether to amend the state constitution to require law enforcement to obtain a warrant to obtain digital data.

Proposal 2 is one of two ballot measures before voters Tuesday, along with a more controversial issue, Proposal 1, which would change how oil and gas revenue are spent to dedicate more to public recreation and land conservation.

Proposal 2 comes amid increased nationwide scrutiny over devices that allow police to seize data from cell phones, including those of people not suspected of crimes. 

The ballot measure has bipartisan support and the backing of the Michigan State Police and the American Civil Liberties Union. But foes say that writing such protections into the constitution are unnecessary.

Here’s what voters need to know.

What is Proposal 2

The text of the proposal reads:

A proposed constitutional amendment to require a search warrant in order to access a person’s electronic data or electronic communications

This proposed constitutional amendment would:

• Prohibit unreasonable searches or seizures of a person’s electronic data and electronic communications.
• Require a search warrant to access a person’s electronic data or electronic communications, under the same conditions currently required for the government to obtain a search warrant to search a person’s house or seize a person’s things.

Why is this an issue

Sen. Jim Runestad, R-White Lake, introduced the amendment and has been working on the issue for years because of concerns that police are using secretive surveillance equipment originally designed for the military.

Both Oakland County and the Michigan State Police use equipment known as “Hailstorm” and “Stingray” devices. The suitcase-size technology replicates a cell tower and pulls cell data from anyone within the area.

“This is very intrusive to our privacy rights and Fourth Amendment rights to have law enforcement that can have this kind of equipment,” Runestad said. 

In 2014, The Detroit News reported the Michigan State Police used the devices 128 times for cases ranging from homicide to burglary and fraud. Both the MSP and Oakland County have said they use the equipment only with warrants and do not store any data of those who are not targets of investigations.

Proposal 2 would create a blanket amendment that would bar the use of all current and future digital surveillance technology by Michigan law enforcement without a warrant. 

“Americans increasingly use the internet to conduct both personal and business affairs, and data are stored almost indefinitely by service providers, external devices, or in Cloud storage,” according to a House Fiscal Agency analysis of the measure. 

“Simply put, the amendment would protect access to electronic data in the same way as access to hard data [e.g., a diary, letters, photographs,], regardless of where it is stored. 

What some police say

“Many people would think that this [amendment] is contrary to what law enforcement would want but it’s just the opposite,” said Sgt. John Wittkowski of the Grand Rapids Police Department.

“We want to secure cases, we want to make sure these cases… are ironclad.”

The amendment would codify already existing case law — such as Riley v. California — that requires the police to obtain a warrant before searching certain digital devices for evidence. 

Similar referendums have passed overwhelmingly in New Hampshire and Missouri in recent years. 

What critics say

There are two major arguments against the measure: It could hinder police and it’s unnecessary since agencies typically already seek warrants.

The House Fiscal Agency noted the amendment could make it harder for police to investigate “cybercrimes and enforce cybercrime laws; for example, internet sex trafficking crimes and child pornography rings.” The amendment also would not apply to federal policing agencies.

Robert Stevenson, executive director of the Michigan Association of the Chiefs of Police, said he agrees in principle that police should obtain warrants, but he argued courts should remain arbiters of the rules.

“[Courts] deal with new technology daily,” Stevenson said, “and the courts are very good at protecting people's rights, we’re comfortable that they would continue to do that…. We don’t need this law.”

Runestead disagreed, saying “people are losing their rights” in the time that it takes for courts to rule on these issues.