Privacy protections could get a much-needed digital overhaul in Michigan

No level of government should be allowed to violate the privacy of American citizens through unreasonable searches and seizures of their property in whatever form the property takes, even digital data.

Like the First Amendment, our right to privacy applies widely to digital technologies. We believe this, and so does Michigan State Senator Jim Runestad (R-Oakland County), who has introduced legislation to fix the state’s constitution accordingly.

While electronic data is produced by Americans and collected by internet and technology companies in larger and larger quantities, some questions remain as to whether this information is private from the government. The proposed amendment would add protections specifically for Michiganders’ “electronic data” and “electronic communications.”

The first thing to understand is that Michigan, like every other state (and the federal government), has constitutional protections from unreasonable searches and seizures of persons, houses, papers, and effects. This means that the local police department or FBI cannot simply walk into your home, unplug your computer, and walk away with it.

But what about data stored on the cloud? Or GPS information created by your social media post that Facebook shares with ad companies? How about your internet browsing history tracked by cookies uploaded to your computer by the websites you visited? Are these fair game for the government to seize and inspect?

Courts find these questions difficult to answer because a court must first classify whether they are dealing with a person, house, paper, or effect, then they must answer whether it is your person, house, paper, or effect.

After all, digital data is often created and stored by technology companies rather than individual users. And you can challenge a government search only if it was your property or privacy it invaded.

Michigan’s proposed amendment would inject the words “electronic data” and “electronic communications” into the list of items protected by its state constitution. These additions would clarify some of the law’s uncertainty. Accordingly, judges at trial and intermediate appellate courts in Michigan would no longer have to wait decades for the state or federal supreme court to decide whether the government violates constitutional liberty when it uses new technology to invade digital privacy.

The new language would provide the answer: if the government searched or seized “electronic data” or “electronic communications,” it needed a warrant first.

For 46 years, Pacific Legal Foundation has long defended all Americans’ constitutional rights, including those woven into the Fourth Amendment. To this end, PLF has submitted this letter demonstrating our full support of efforts to clarify these sacred protections in Michigan.