Missouri Ballot Initiative Will Add Electronic Data Protections to State Constitution

In August, Missouri voters will have an opportunity to reject significant parts of mass surveillance programs by both the state and federal governments.

Introduced by Sen. Rob Schaaf, Senate Joint Resolution 27 (SJR27) passed the legislature last month with just a handful of dissenting votes. Because it is a proposal for a state constitutional amendment, it will now bypass the Governor’s desk, instead going directly to the People on the ballot. It will be voted upon as Amendment 9 in the Aug. 5 primary election.

The MO legislature passed SJR27 to expressly give “electronic data and communications” the same state constitutional protections as “persons, homes, papers and effects.” This would eliminate any constitutional ambiguity over electronic data and would make it off limits for Missouri state officials to access unless a proper warrant is granted.

The text of SJR27 replaces the “privacy rights” section in the state constitution with the following language adding electronic communications to the objects protected from search or seizure without a warrant.

“That the people shall be secure in their persons, papers, homes [and], effects, and electronic communications and data, from unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, or access electronic data or communication, shall issue without describing the place to be searched, or the person or thing to be seized, or the data or communication to be accessed, as nearly as may be; nor without probable cause, supported by written oath or affirmation.”

The addition of electronic communications to the list of privacy items would make emails, phone records, Internet records and other electronic information gathered without a warrant inadmissible in state court. That would include data gathered illegally by state and local law enforcement as well as the federal government.

“I think there has been a lot of discussion about privacy, especially when so many data breaches have occurred and people’s identity has been stolen,” Sen. Schaff said in a Joplin Globe report about SJR27. “As far as the government intruding right into our home, we’ve known that they can do it for a long time, but Snowden and his revelations cemented it and made people realize that what they didn’t like to talk about is really true.” Schaff says he expects Missouri residents to vote ‘overwhelmingly in favor’ of the ballot initiative.

In addition to stopping Missouri state officials from collecting electronic data without a warrant, SJR27 could act as an impediment upon the growth of federal power as well. Federal data sharing programs rely on compliance from the state and local levels of government to properly function, and that would be brought to an end in MO if this measure passes in August.

As Reuters reported in Aug. 2013, the secretive Special Operations Division (SOD) is “funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.”

Documents obtained by Reuters show that these cases “rarely involve national security issues,” and that local law enforcement is directed by SOD to “conceal how such investigations truly begin.”

Reports in the Washington Post and USA Today last fall documented how “the FBI and most other investigative bodies in the federal government” are regularly using a mobile device known as a “stingray” to intercept and collect electronic data without a warrant. Local and state police “have access through sharing agreements.”

The decision on whether to continue giving government officials the discretion to collect electronic data warrantlessly or to enact new electronic privacy protections will ultimately be decided by the people. Amendment 9 needs approval by a majority vote to make it a part of the Missouri state constitution and give it legal force.

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