by Scott McClallen
When Sen. Peter J. Lucido, Lucido, R-Shelby Township, sponsored measures that would fortify Fourth Amendment protections on data and digital communications, he said he wanted “to bring our laws into the times of our technology.”
Lucido told The Center Square government entities could request a warrant from a judge if they want to access Michigan residents’ digital information.
“We’ve advanced in technology, and we need laws that will protect the rights of the citizens of this state,” said Lucido, an attorney who practiced law for 33 years.
SB 341 passed the Senate Committee on Judiciary and Public Safety unanimously on Thursday, which would prohibit law enforcement from accessing someone’s digital information without a warrant, with some exceptions.
SB 342 would prohibit law enforcement from using or accessing real-time facial recognition technology, with some exceptions.
SB 114 would require law enforcement to obtain a warrant to search someone’s premises, even if another person occupying that space consents to a warrantless search.
“If I say no, you can’t come in, but you say yes, who’s right?,” Lucido said. “Do the police get access? I think if one person says no, then no means no. Go get your warrant.”
The Pacific Legal Foundation, a nonprofit legal organization, sent an amicus brief on Oct. 3 to the Senate Committee on Judiciary and Public Safety.
PLF Attorney Daniel Woislaw told The Center Square that the United States has been floating in this “limbo area” in deciding how privacy applies to nonphysical items such as data stored in the cloud.
“For instance, we had cell phones for decades before Riley v. California in 2014 was decided by the US Supreme Court, which said when you arrest somebody you can’t just search through their phone without a warrant,” Woislaw said.
Woislaw compared this amendment with the First Amendment’s application to digital forums like Twitter.
Woislaw said the Fourth Amendment was crafted when an officer would have to physically invade your home to access one’s papers.
“But now, we walk around with a digital record of basically everywhere we’ve been and everything we’ve done because the apps on our phones are recording GPS data and tracking us everywhere, then storing it, sometimes even on the cloud rather than on our phones,” Woislaw said.
The test to determine if a search and seizure is a Fourth Amendment violation is if it invades a “reasonable” expectation of privacy, influenced by prior illegal government invasions of privacy of digital communications.
“What we should have been seeing, but we haven’t, is them looking at what is a ‘paper’,” Woislaw said. “Is the GPS location data stored by Verizon, based on your phone activity, a paper? If it is, they should say it’s protected.”
Woislaw noted that the U.S. Constitution provides a “low bar” for protection, and that it’s up to states to provide more stringent protections against unreasonable government action.
The legislation now moves Senate floor for consideration.
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Scott McClallen is a staff writer covering Michigan and Minnesota for The Center Square. A graduate of Hillsdale College, his work has appeared on Forbes.com and FEE.org. Previously, he worked as a financial analyst at Pepsi.
Photo “Michigan Capital” by Subterranean. CC BY-SA 3.0.