Member Article

While public attention focused on the federal and state elections, Michigan voters made an important decision—they adopted Proposal 20-2, which amended Michigan’s Constitution to extend its protection from unreasonable searches and seizures to electronic data and communications. With the proliferation of personal electronic devices and storage of business information on computers used at home in the past few decades, federal and state courts, including the Supreme Court, have grappled with how to apply Fourth Amendment protections against unreasonable searches and seizures in a digital age. Although Proposal 20-2 might not change investigative practice, it clarifies that electronic data and communications are subject to the same protection against unreasonable search and seizure as other “traditional” information, such as paper records.

Proposal 20-2 was proposed by Michigan’s Republican-controlled Senate and House of Representatives and cleared the required two-thirds, bipartisan, threshold necessary in order to be listed for approval by the voters.SeeMich. Const. Art. XII § 1. It also garnered support from both the ACLU and the Michigan State Police, two interest groups that do not usually find themselves on the same side of criminal justice issues. Proposal 20-2 passed in a landslide: 88.8 percent to 11.3 percent.

Proposal 20-2 makes two changes to Article I Section 11 of the Michigan Constitution, the state analog to the federal Fourth Amendment. It first adds “electronic data” and “electronic communications” to the list of traditional items (“person, houses, papers,” and “possessions”) protected from “unreasonable searches and seizures.” Importantly, this amendment also requires a warrant “to access electronic data or electronic communications,” in addition to the traditional warrant requirement “to search any place or to seize any person or things.” Proposal 20-2 makes clear that electronic data and communications are subject to the same constitutional protections as people, homes, and tangible items. This amendment removes at least one question for future Michigan courts to consider in analyzing whether a police search or seizure of electronic data or communications is constitutional. Just like the current version of Article I Section 11, Proposal 20-2 provides protection for the “electronic data” and “electronic communications” of “every person.” Therefore, whether the “data” is for business needs or personal use, the seizure or taking of the information requires a warrant.

Proposal 20-2 may not change much about how law enforcement obtains individuals’ electronic data and communications; many police departments already require warrants before seizing or searching electronic devices. But Proposal 20-2 makes the warrant requirement mandatory, eliminating potential arguments that electronic data and communications have less constitutional protection and providing clearer redress for individuals whose electronic devices are improperly seized or searched by law enforcement.

Proposal 20-2 becomes effective 45 days after the election, on December 18.SeeMich. Const. Art. XII § 1.

If you have any questions, please contact Jonathan Feld (312-627-5680 or [email protected]), Andrew VanEgmond (734-214-7603 or [email protected]), or your local Dykema relationship attorney.