As calls for police reform continue across Detroit, Michigan voters will decide on a state constitutional amendment that will determine future digital privacy rights and codify limits on law enforcement as technology advances and seeps into every aspect of our daily lives.
Proposal 2 appears on the state proposals section of the ballot for the Nov. 3 general election. It would ban law enforcement agencies from searching and seizing an individual’s personal digital data and communications without a court-ordered warrant and justified probable cause.
State Sen. Jim Runestad (R-White Lake) introduced the amendment in the Legislature in 2019, and this June, the Michigan House and Senate unanimously passed a resolution to place it on the November ballot.
If the proposal is passed, Michigan will be one of about a dozen states across the country to adopt similar constitutional amendments regarding privacy and electronic communication rights. Voters in Missouri and New Hampshire passed related legislation in 2014 and 2018 with 75% and 81% support respectively.
“I believe it will pass way over 80% here in the state of Michigan,” Runestad said in June.
Hazel Park resident Jennifer Caudill, 34, said it’s about time the state constitution reflects our reality.
“The constitution was created in 1963 and obviously technology has changed a lot since then,” Caudill said, after noting police reform as a key voting concern in Detour’s election survey. “All the important documents people kept in filing cabinets are now in their phones. Your phone is your wallet, your passport, it’s got all your important information, and I think that’s important that the constitution recognizes that this is something the police need to get a search warrant to access.”
Why is the change proposed?
Even though the U.S. Constitution does not explicitly protect private digital data and communications from search and seizure, it is considered an “effect” in the language of the Fourth Amendment and for the most part requires law enforcement to seek a warrant to access it, according to a policy brief from the Citizens Research Council of Michigan.
However, the courts have been slow to determine the extent to which the Fourth Amendment affords these protections to digital property and few cases have reached the U.S. Supreme Court to become binding precedent.
For Detroit activists, the proposed amendment overlaps with concerns about the city’s rapidly expanding Project Green Light video surveillance program and the increasing use of facial recognition in policing that disproportionately impacts people of color. While the city recently renewed its facial recognition software contract, Proposal 2 offers a silver lining, said Tawana Petty, a convening member of the Detroit Digital Justice Coalition.
“It’s important to prohibit unreasonable search and seizures of electronic devices, or any data without a warrant, and evidence to warrant or probable cause,” Petty said. “It’s gotten way too out of hand and it really has everybody in a bit of a perpetual lineup, you know, hoping they’re not tagged for a crime they didn’t commit — so we have some strong regulations in place.”
Merissa Kovach, a policy strategist at the ACLU of Michigan, said the amendment would put Michigan ahead of the curve as it enshrines data protection in the state constitution without having to rely on the federal courts.
“The reason why Proposal 2 is so important is that we’ve traditionally relied on the federal court and they have been pretty slow to keep up with emerging technology,” she said, bringing up the landmark Supreme Court case of Carpenter v. United States.
In 2018, the Supreme Court ruled that law enforcement needs a warrant to access the long-term records of personal cell phone data including GPS tracking, when Timothy Ivory Carpenter was sentenced to 116 years in prison for robbing a Radio Shack in Detroit after police used historical cell phone data to prosecute him. The criminal case sparked a national conversation on privacy and the Fourth Amendment.
Proposal 2’s constitutional amendment draws a line as to where we have a right to privacy, Kovach explained. “It makes it very clear in our state constitution, so that it will leave no question in the future no matter what sort of technology is developed, that law enforcement may have access to, that could surveil citizens or residents,” she said.
The proposal only goes so far
The language of the proposal only bars Michigan law enforcement agencies from accessing an individual’s digital data, but says nothing about protecting against federal law enforcement agencies accessing this information.
Activists also say that Proposal 2 will likely have little impact on police reform and facial recognition software currently employed for surveillance in Detroit.
“It is mainly meant for individual personal electronic information. So, cell phone records, including your location, your cellphone usage and your email would naturally be under the new protections — unlike security cameras which are used by private businesses and part of Project Green Light,” Kovach said.
Willie Bell, chair of the Detroit Board of Police Commissioners, the civilian oversight organization of the Detroit Police Department, also said Proposal 2 and surveillance systems currently used by DPD are “separate” issues.
“I think it’s in line with police reform and is a fine proposal to ensure the police better follow the law,” Bell said. “There has been a great deal of concern about police actions in following the constitution and enforcing the law and this will help to add a layer of accountability.”
“This could have been really powerful — it could have really helped us activists and organizers to do our job because, we benefit greatly when we have the law on our side and legal precedent to argue our case,” said Arthur Bowman, an organizer for Green Light Black Futures, a coalition pushing to end Project Green Light and surveillance programs in Detroit.
“I personally would have liked to see something retroactive in their proposal that could retroactively undermine the legal precedents of Green Light, and facial recognition technology, this sci-fi anti-Black surveillance program. Without it, it sort of feels like the legalization of recreational marijuana, which has primarily benefited white business owners and not done much for the scores of non-violent drug offenders,” Bowman said.
Despite limitations, activists are encouraged by Proposal 2
Bowman still sees Proposal 2 as an imperative amendment.
“The implications of police surveillance are wider than Detroit or Michigan, and there’s not enough policy infrastructure or legal precedent around it,” he said.
The Detroit Police Department did not return Detour’s request for comment about Proposal 2.
Detroiter Terrell Thomas, 49, also recently shared concerns over policing in Detour’s voter survey. He suggested that these protections would help people, especially young Detroiters, to stay engaged politically without undue police surveillance.
“I’m specifically talking about the recent Black Lives Matter protests and the police attempts to crack down on them through digital surveillance. A lot of the people coming out and organizing politically are young, often in high school or college and the lack of protection on their data only serves to intimidate them out of politics as they feel they cannot freely communicate and organize without police retribution as is their right,” Thomas said.
Petty views Proposal 2 as a “tremendous opportunity” for Detroit. If approved, she said it will send a strong message of support for Detroit City Council President Pro Tem Mary Sheffield’s proposed Community Input Over Government Surveillance ordinance. Sheffield’s ordinance seeks to establish strong City Council oversight and public input into the purchase and use of any surveillance technology in the city.
“The ordinance probably won’t immediately impact the current practice of policing, but this is just the beginning — and locally in Detroit, this would at least bring the community members voices into the room where surveillance technologies are being proposed by law enforcement,” Petty said.
“[Proposal 2’s passage] will send a strong message to not only law enforcement, but community members that we still have a bit of our fight in protecting our civil liberties, which is another model of self-determination.”
More Detroit elections coverage from Detour:
–Everything to know about early voting in Detroit
–Here are all of Detroit’s ballot drop boxes and satellite voting centers
–How accessible is voting in Detroit?
–Does Detroit have enough poll workers?
So here’s the long and short of it:
What is Proposal 2?
Proposal 2 is a constitutional amendment on the Michigan ballot that seeks to require a search warrant in order to access a person’s electronic data or electronic communications. It would amend Section 11 of Article 1 of the Michigan Constitution of 1963.
If passed, the amended Section 11 of Article 1 of the state Constitution will read as :
“The person, houses, papers,
and 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.”
A “yes” vote supports banning law enforcement agencies from searching and seizing an individual’s personal electronic data and communications without a court-ordered warrant.
A “no” vote opposes a ban on unwarranted searches and seizures of digital data.
Who would it apply to?
If passed, all residents in Michigan would be protected against state and local law enforcement agencies accessing their data without consent or a court-ordered warrant based on probable cause. The amendment to the state Constitution does not apply to federal law enforcement agencies like the FBI, Homeland Security or ICE.
What are its chances of getting approved?
Proposal 2 is a fairly straightforward amendment enjoying bipartisan support across party lines.
Republican Senator Jim Runestad introduced the amendment in the legislature in June 2019 and this June, the Michigan House and Senate unanimously passed a resolution to place it on the November ballot. Looking at Michigan’s history with legislature-referred amendments, Proposal 2 has a good chance of getting passed as 89% of legislature-referred amendments win the ballot compared to 40% of citizen-led amendments, according to a Ballotpedia analysis.
How would it affect Detroiters?
Tawana Petty of the Detroit Digital Justice Coalition and Arthur Bowman of the Green Light Black Futures coalition say if the amendment is passed it will be a shot in the arm for local activism that is geared toward ending surveillance programs like Project Green Light and the use of facial recognition in policing that has a disproportionate impact on communities of color, especially Black people. While the amendment will not have an effect on DPD’s use of facial recognition or surveillance programs, it is forward-looking in protecting Detroiters’ rights as technology advances.
What if there’s an emergency and the police need to access my phone?
Caudill, who favors the amendment, still wondered how it would affect first responders’ ability to access a person’s contacts in the case of emergency.
To that, Willie Bell, chair of the Detroit Board of Police Commissioners said the amendment would not affect emergency response as law enforcement already has protocols in place for such situations. “There are certain steps for warrants and in dire emergencies, law enforcement knows how to justify their actions and follow procedure, so this amendment is not likely to hinder emergency responses,” Bell said.
Still have questions about Proposal 2 or other voting issues in Detroit? Fill out this quick form to ask the reporters at Detour.
This post was updated to clarify Petty’s title and her remarks on the impact of Proposal 2 and the Community Input Over Government Surveillance ordinance.