Missouri Electronic Data Protection, Amendment 9 (August 2014)
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The Missouri Electronic Data Protection, Amendment 9 was on the August 5, 2014, primary election ballot in Missouri as a legislatively referred constitutional amendment, where it was approved. The measure added electronic communications and data to the Missouri Constitution's prohibition against unreasonable searches and seizures.[1][2]
The measure was primarily sponsored by Sen. Rob Schaaf (R-34) and cosponsored by Sen. Bob Dixon (R-30) in the Missouri State Senate, where it was known as Senate Joint Resolution 27. The measure amended Section 15 of Article I of the Missouri Constitution.[2][3]
Election results[edit]
Below are the certified election results:
| Missouri Amendment 9 | ||||
|---|---|---|---|---|
| Result | Votes | Percentage | ||
 Yes | 729,752 | 74.75% | ||
| No | 246,515 | 25.25% | ||
Election results via: Missouri Secretary of State
Text of measure[edit]
Ballot title[edit]
The ballot language appeared as:
| “ |  [4]
|
” |
The official ballot title and fair ballot language read as follows:[5]
| “ | Official Ballot Title:
Shall the Missouri Constitution be amended so that the people shall be secure in their electronic communications and data from unreasonable searches and seizures as they are now likewise secure in their persons, homes, papers and effects? State and local governmental entities expect no significant costs or savings. Fair Ballot Language: A “yes” vote will amend the Missouri Constitution to specify that electronic data and communications have the same protections from unreasonable searches and seizures as persons, papers, homes, and effects. A “no” vote will not amend the Missouri Constitution regarding protections for electronic communications and data. If passed, this measure will have no impact on taxes.[4] |
” |
Constitutional changes[edit]
The measure amended Section 15 of Article I of the Missouri Constitution to read as follows with the [bracketed] text being removed and the bold text being added:[3]
| Section 15. 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.[4] |
Background[edit]
- See also: Prism operation disclosure
In 2013, electronic privacy concerns became a focal point of United States politics following the high-profile disclosure of classified National Security Agency (NSA) documents by Edward Snowden. Some of these documents revealed the existence of global surveillance programs which came under heavy criticism for violating rights to privacy of U.S. citizens and the international community. State, federal and international discussions concerning privacy on the internet and other forms of electronic communication have all been influenced by these revelations.[6][7]
Other MO privacy measures[edit]
Several other measures were proposed in the 2014 session of the Missouri General Assembly relating to privacy issues, ranging from traffic stops to the use of drones. They included the following measures, which did not pass, with descriptions from Missouri Lawyers Weekly:[8]
- Senate Bill 599: "Restricts the storage and use as evidence of data collected through automated license plate reader systems."
- Senate Bill 608: "Prohibits the gathering of intelligence about a person unless there is evidence of criminal activity and requires warrants to search curbside garbage that is awaiting collection."
- Senate Bill 957: "Prohibits the indiscriminate gathering of intelligence about a person and contains provisions regarding the ownership and investigation of garbage awaiting collection."
- House Bills 1257 & 1423: "Prohibits any member of the state highway patrol or local law enforcement agency or employee of the national highway traffic safety administration from collecting breath, blood or saliva for research purposes."
- House Bill 2171: "Changes the laws regarding the reimbursement of the state or local law enforcement by a defendant for the costs of searching and examining any seized electronic devices."
- House Bill 1388: "Requires a search warrant for a government entity to obtain location information of an electronic device."
- House Bill 1204: "Prohibits the use of drones or other unmanned aircrafts to gather evidence or other information, with specified exceptions."
Other states' actions[edit]
Missouri was not the only state government to act on privacy concerns in 2014. At least 20 states were involved in legislative efforts concerning electronic privacy. Alaska, Arizona, California, Michigan, Oklahoma, South Carolina and Vermont all took up legislation looking to ban states from providing material support and resources to federal agents engaged in warrantless electronic surveillance. The organization OffNow was a major proponent of encouraging such legislation, including drafting model legislation.[9][10]
Minnesota, New Hampshire and Utah joined Missouri in attempting to ban the use of data obtained through warrantless means in court. Along with those states, Illinois, Maine, Montana, Pennsylvania, Rhode Island, Tennessee, Virginia, West Virginia and Wisconsin all debated banning the warrantless tracking of cell phone locations by law enforcement agencies.[9]
Of all of these legislative efforts, only a few were successful. In addition to the legislative referral of this measure in Missouri, Utah's Gov. Gary Herbert (R) and Minnesota's Gov. Mark Dayton (D) signed laws prohibiting cell phone tracking in March and May 2014, respectively. While these state actions may make some impact in electronic data privacy, skepticism has been expressed as to whether or not they can be truly effective without federal action.[9]
SCOTUS ruling[edit]
On June 25, 2014, the U.S. Supreme Court ruled in Riley v. California that police cannot search digital information on a cell phone seized from an individual who has been arrested without a warrant.[11] The move was applauded by supporters of stronger electronic privacy measures, but some argue that the court did not go far enough. Sen. Robert Schaaf (R-34) said that while the ruling was a step in the right direction, "Amendment 9 would cover things other than cellphones, laptops and communications. It (the high court ruling) only covers cellphones."[12]
Support[edit]
Supporters[edit]
- Protect Our Privacy[13]
- OffNow
- Yes on 9 American Civil Liberties Union (ACLU) of Missouri
- United for Missouri
- American Legislative Exchange Council
- Constitution Party of Missouri[14]
- Sen. Rob Schaaf (R-34), sponsor
- Sen. Bob Dixon (R-30), cosponsor
- Rep. Paul Curtman (R-109)
OffNow, ACLU and American Legislative Exchange Council have all worked with state governments on electronic privacy protections against government agents.[15]
Arguments[edit]
Rep. Curtman argued that the law is a natural extension of the logic behind the existing protections from unwarranted searches and seizures, saying, "It makes perfect sense that if our hard copy data is protected from unwarranted searches and seizures then our electronic data should be as well."[16]
United for Missouri advertisement supporting Amendment 9. |
The League of Women Voters provided a nonpartisan voters guide for all amendments in Missouri. They included the following argument in favor of Amendment 9:
| “ | Proponents say the amendment is a logical extension of existing protections from unwarranted searches and seizures. They believe electronic data should be protected as well. They say unless there is evidence of criminal activity, they have concerns about the increased tracking of cell phone information and other private electronic data.[4] | ” |
| —League of Women Voters[17] | ||
The Franklin County Democrats provided summaries and arguments written by Rep. Jeanne Kirkton (D-91) for and against each amendment on the August ballot. She gave the following arguments in favor of Amendment 9:
| “ | Privacy protections under the Missouri Constitution need to be modernized to catch up to advances in technology that not only have radically altered the way people communicate and store information but also greatly enhanced the ability of government to snoop into the private affairs of its citizens.
One need look no farther than the National Security Administration’s mass collection of the electronic data and communications of millions of Americans without a warrant or even suspicion that any individual has committed a crime. Although the courts might ultimately decide that the Fourth Amendment broadly applies to electronic communications and data, putting specific protections in the Missouri Constitution will ensure that Missourians are secure in that regard without having to wait for a court to say so. The right to be free of unreasonable searches and seizures protects the privacy and security of individuals from arbitrary government invasion. Missouri should expand that right to account for the realities of 21st century life and further guard against government overreach.[18][4] |
” |
| —Rep. Kirkton | ||
Campaign contributions[edit]
Protect Our Privacy and Yes on 9 ACLU of Missouri both registered with the Missouri Ethics Commission as supporting Amendment 9. The following totals were as of the required report eight days prior to the primary election. At the time of the election, the 28th Ward Democrats Campaign Committee was a registered political action committee (PAC), which campaigned on several amendments. The following totals represent its total contributions received in 2014, but the expenditures are only those specifically for Amendment 9.[19]
PAC info:
| PAC | Amount raised | Amount spent |
|---|---|---|
| Protect Our Privacy | $2,000.00 | $917.43 |
| Yes on 9 ACLU of Missouri | $8,905.66 | $0 |
| 28th Ward Democrats Campaign Committee | $993.00 | $93.31 |
| Total | $11,898.66 | $1,010.74 |
Total campaign cash 
| |
 Support:
|
$11,898.66 |
 Opposition:
|
$0 |
Top 5 contributors:
| Donor | Amount |
|---|---|
| American Civil Liberties Union Foundation | $6,485.00 |
| Schaaf for Senate | $2,000.00 |
| American Civil Liberties Union of Missouri | $1,998.06 |
| American Civil Liberties Union | $296.00 |
| Demand Progress Action | $63.30 |
Opposition[edit]
Opponents[edit]
- Southwest Missouri Democrats[20]
Arguments[edit]
Some concerns were raised over the unintended consequences this amendment might have, especially the possibility of making it more difficult for law enforcement to pursue cyber crimes. Rep. Jeff Roorda (D-113) pointed to the ongoing judicial conversation about what should and should not be considered private communication and data, as well as saying, "Meddling in it is problematic for those of us who want to keep pedophiles off the Internet."[16]
The League of Women Voters provided a nonpartisan voters guide for all amendments in Missouri. They included the following argument in opposition to Amendment 9:
| “ | Opponents say the amendment could have unintended consequences and make it more difficult for law enforcement to investigate cybercrime. They also say the state proposition would be ineffective without similar federal action.[4] | ” |
| —League of Women Voters[17] | ||
Orin Kerr, the Fred C. Stevenson Research Professor at The George Washington University Law School, questioned whether Amendment 9 would have any practical effect, if approved. He pondered the possible impact of the measure, saying,
| “ | It’s [...] possible that Missouri courts will construe the new language as going beyond Fourth Amendment protections. The state equivalent of the Fourth Amendment has been interpreted in its current form as mirroring the federal Fourth Amendment. [...] If the amendment passes, perhaps courts will interpret the new text as doing something more. Still, it’s not clear just what that “more” will be. Further, even if courts construe the new language as doing something new, that new thing will only restrict Missouri state and local officials. Under the Supremacy Clause, state constitutional limits do not apply to federal law enforcement.[4] | ” |
| —Orin Kerr[21] | ||
The Franklin County Democrats provided summaries and arguments written by Rep. Jeanne Kirkton (D-91) for and against each amendment on the August ballot. They provided the following arguments in opposition to Amendment 9:
| “ | Our judicial system for generations has carefully balanced the individual right to privacy against the legitimate need of police to obtain evidence when investigating crimes. There is no reason to believe the courts will fail to maintain that balance in regard to electronic information.
Amendment 9 could make it more difficult for law enforcement to go after online sexual predators, those engaged in financial fraud and others who use electronic means to commit crimes. By tinkering with an important state constitutional right that hasn’t been substantively changed in nearly 200 years, Amendment 9 could create unintended consequences. Police need the constitutional flexibility to adapt their investigatory techniques to account for advances in technology.[18][4] |
” |
| —Rep. Kirkton | ||
Reports and analyses[edit]
AP analysis[edit]
Gov. Nixon's decision to place this measure and four others on the August primary election ballot instead of the November general election ballot had the potential to trigger political and legal ramifications, according to Associated Press reporter David A. Lieb. For example, it was presumed that Amendment 1 would draw many rural residents to the polls in November. Since rural Missouri voters tend to vote for Republicans over Democrats, it could have been a bigger boon to Republican candidates to have those voters come out to the November election, rather than the August primary. Similarly, the lawsuit over Amendment 5 was dismissed, at least in part, due to time constraints that would not have applied if the measure was on the November ballot, instead. Lieb summarized the potential impact of gubernatorial placement of ballot measures on the primary ballot, saying, "a governor who doesn't like a particular ballot measure could diminish its political impact by placing it on the August ballot, but that also could hinder the ability of opponents to challenge it in court."[22]
Media editorial positions[edit]
Support[edit]
- The Sullivan Journal said,
| “ | The U.S. Supreme Court already took care of this. We like Amendment 9, so vote yes if inclined to do so.[4] | ” |
| —Sullivan Journal[23] | ||
- The Kirksville Daily Express said,
| “ | We support adding “electronic communication and data” to the list of things protected from warrantless searches. Our constitution was written in a different time and should be updated to reflect our changing needs.[4] | ” |
| —Kirksville Daily Express[24] | ||
- The Missourian said,
| “ | Amendment 9 is to protect a person’s electronic communications and data from unreasonable searches and seizures. There is a question about the need. It is an added safeguard. We are leaning toward a yes vote.[4] | ” |
| —The Missourian[25] | ||
- The Springfield News-Leader said,
| “ | Amendment 9 would take us into the 21st century by adding electronic data to protection from unreasonable search and seizure of our "persons, papers, homes and effects." This is a logical step in an electronic age.[4] | ” |
| —Editorial Board, Springfield News-Leader[26] | ||
- The Southeast Missourian said,
| “ | Amendment 9 appears to help strengthen electronic communications. This information should be made secure, though we're skeptical the measure will do much.[4] | ” |
| —Southeast Missourian[27] | ||
Opposition[edit]
- The West Plains Daily Quill said,
| “ | We already have such protection. The same protection is provided by a ruling in the case Riley v. California which the U.S. Supreme Court decided on a unanimous vote in June. The ruling is that police need a warrant to search digital information on a person’s cell phone even after the person has been arrested. Computers and other electronic devices are protected already to the same extent as other personal property--a warrant is needed to search them.[4] | ” |
| —Frank L. Martin, Editor & Publisher[28] | ||
- The News Tribune doubted Amendment 9's ability to actually improve electronic privacy, and leaned towards voting no on it because they were "weary of amending the Constitution with superfluous provisions."[29] They later actively opposed the measure, saying,
| “ | Oppose Amendment 9, to extend privacy protections to digital communications. We believe a statewide amendment is insufficient to address ever-expanding technologies, communications and privacy issues.[4] | ” |
| —News Tribune[30] | ||
- The Joplin Globe said,
| “ | In the argument that less is more, we would point out that some of these constitutional amendments provoke costly, burdensome legal challenges that tie up the court system for years. We don’t need that. We already have the word from the top court in the land. Our electronic devices and rights are protected by the U.S. Constitution.[4] | ” |
| —The Joplin Globe[31] | ||
- The Columbia Daily Tribune said,
| “ | Recently the U.S. Supreme Court decided unanimously that law officers need warrants to search for such information from arrested people, so the legal protection is expanded in the proper federal venue, making a state law redundant. More clutter. Another reason to vote “no.”[4] | ” |
| —Henry J. Waters, III, editor of Columbia Daily Tribune[32] | ||
- The St. Louis Post-Dispatch said,
| “ | Amendment 9 might have been a good idea right up until June 25, when a unanimous U.S. Supreme Court agreed that law enforcement officers need a warrant to search digital information on a cell phone seized from someone who has been arrested. [...] There’s no need for Missouri to pile on with extra privacy laws, just as there’s no need for superfluous gun laws or property-rights laws. The more clutter you stick into the state constitution, the more problems you cause in interpreting it.[4] | ” |
| —St. Louis Post-Dispatch[33] | ||
- The Kansas City Star said,
| “ | The intent of Amendment 9 is good. But there’s been too little discussion about the potential consequences. The subject needs to be more thoroughly explored by the courts and in legislative debate before it is enshrined in the Missouri constitution.[4] | ” |
| —The Kansas City Star[34] | ||
Other[edit]
- The St. Joseph News-Press questioned the need for the amendment following a Supreme Court ruling that provided sweeping protections for digital privacy, saying,
| “ | This is a place where we have questions about Amendment 9 on the Aug. 5 ballot in Missouri. Our own State Sen. Rob Schaaf is one of the ardent advocates for this amendment to the state constitution asserting that "people shall be secure in their electronic communications and data from unreasonable searches and seizures as they are now likewise secure in their persons, homes, papers and effects." Sen. Schaaf says the amendment would accord Missourians broader protection -- extending to laptops, tablets and more. The concern resonates, but the argument for doing this at the state level loses steam in light of the high court's decision.[4] | ” |
| —St. Joseph News-Press[35] | ||
Polls[edit]
- See also: Polls, 2014 ballot measures
A July 2013 phone survey by the Princeton Survey Research Associates International for the Pew Research Center’s Internet and American Life Project asked 1,002 adult respondents,
| “ | Thinking about current laws, do you think the laws provide reasonable protections of people’s privacy about their online activities, or do you think the laws are not good enough in protecting people’s privacy online?[4] | ” |
| —Princeton Survey Research Associates International[36] | ||
The survey found that 24 percent thought that current laws were reasonable protection, while 66 percent thought the current laws were "not good enough." Another 9 percent said they did not know, and 1 percent refused to answer. The overall margin of error for the survey was plus or minus 3.6 percent.[36]
Path to the ballot[edit]
| Missouri Constitution |
|---|
|
| Preamble |
| Articles |
| I • II • III • IV • V • VI • VII • VIII • IX • X • XI • XII • XIII • XIV |
- See also Amending the Missouri Constitution
Proposed amendments must be agreed to by a majority of the members of each chamber of the Missouri General Assembly to be placed on the ballot.
On April 1, 2014, the Senate approved SJR 27. The Missouri House of Representatives followed suit on May 16, 2014.[2][37][38]
Senate vote[edit]
April 1, 2014 Senate vote
| Missouri SJR 27 Senate Vote | ||||
|---|---|---|---|---|
| Result | Votes | Percentage | ||
| Yes | 31 | 96.88% | ||
| No | 1 | 3.12% | ||
House vote[edit]
May 16, 2014 House vote
| Missouri SJR 27 House Vote | ||||
|---|---|---|---|---|
| Result | Votes | Percentage | ||
| Yes | 114 | 80.28% | ||
| No | 28 | 19.72% | ||
See also[edit]
External links[edit]
- Senate Joint Resolution 27
- Protect Our Privacy campaign website and Facebook profile
- OffNow
- Digital Due Process
- National Security Agency (NSA)
Additional reading[edit]
- PoliticMo, "Missouri voters back constitutional “right to farm”, oppose new tax for roads," August 6, 2014
- The Washington Post, "Why are ballot measures so darn confusing? Because they are supposed to be.," August 5, 2014
- Associated Press, "Missouri voters may fortify digital privacy rights," July 28, 2014
- The Rolla Daily News, "Voters to decide privacy measure Aug. 5," July 3, 2014
- PoliticMO, "Privacy ballot question pushes new legal 'frontier’, says law professor," June 9, 2014
- Missouri Lawyers Weekly, "Privacy measure would expand protections on electronic devices," May 26, 2014
- Lake News Online, "Missouri lawmakers send 8 issues to voters," May 24, 2014
- The New American, "Proposed Amendment Will Stymie Surveillance in Missouri," May 21, 2014
- Newsmax, "Harris Poll: People Cutting Back Internet Use After Snowden," April 4, 2014
- New York Times, "N.S.A. Able to Foil Basic Safeguards of Privacy on Web," September 5, 2013
- The New Yorker, "SNOWDEN’S LEGACY: A PUBLIC DEBATE ABOUT ONLINE PRIVACY," August 20, 2013
- Congressional Research Service, "Privacy: An Overview of the Electronic Communications Privacy Act," October 9, 2012
Footnotes[edit]
- ↑ SFGate.com, "Missouri lawmakers back electronic privacy efforts," May 24, 2014
- ↑ 2.0 2.1 2.2 Open States, "Missouri 2014 Regular Session, SJR 27," accessed May 28, 2014
- ↑ 3.0 3.1 Missouri State Senate, "SENATE JOINT RESOLUTION NO. 27, Truly Agreed To and Finally Passed," accessed May 28, 2014
- ↑ 4.00 4.01 4.02 4.03 4.04 4.05 4.06 4.07 4.08 4.09 4.10 4.11 4.12 4.13 4.14 4.15 4.16 4.17 4.18 4.19 4.20 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source. Cite error: Invalid
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- ↑ The Guardian, "Edward Snowden: the whistleblower behind the NSA surveillance revelations," June 9, 2013
- ↑ New York Times, "Cryptic Overtures and a Clandestine Meeting Gave Birth to a Blockbuster Story," June 10, 2013
- ↑ Missouri Lawyers Weekly, "Privacy measure would expand protections on electronic devices," May 26, 2014
- ↑ 9.0 9.1 9.2 Newsmax, "Electronic Privacy Battles Taking Place in 20 States," May 25, 2014
- ↑ Off Now, "4th Amendment Protection Act Model Legislation," accessed May 28, 2014
- ↑ Riley v. California, 573 (U.S. 2014)
- ↑ PoliticMO, "Sen. Rob Schaaf says SCOTUS ruling reaffirms need for state measure," June 26, 2014
- ↑ Protect Our Privacy, "The Electronic Privacy Amendment," accessed July 22, 2014
- ↑ Constitution Party of Missouri, "Contact Us," accessed July 22, 2014
- ↑ MissouriWatchdog.org, "Missourians can fight electronic government spying at ballot box," May 19, 2014
- ↑ 16.0 16.1 St. Louis Post-Dispatch, "Protect your email and cellphone? Missouri could add to constitution," May 16, 2014
- ↑ 17.0 17.1 League of Women Voters' Voter Guide, "Constitutional Amendment 9," accessed July 22, 2014
- ↑ 18.0 18.1 Franklin County Democrats, "Primary Election Day, August 5th Ballot Measures," July 8, 2014
- ↑ Missouri Ethics Commission, "Ballot Measures by Election Search," accessed July 22, 2014
- ↑ The Joplin Globe, "Neosho lawmaker stands by ballot proposal on farming," July 16, 2014
- ↑ The Washington Post, "Missouri voters to consider computer search and seizure amendment," June 25, 2014
- ↑ Associated Press, "Analysis: Timing of elections can have political, legal effects for Missouri ballot measures," July 6, 2014
- ↑ Sullivan Journal, "Say "No" to Amendment 7 and Amendment 1 Right To Farm," August 3, 2014
- ↑ Kirksville Daily Express, "Our View: How we're voting in the primary," August 3, 2014
- ↑ The Missourian, "The Amendments," August 2, 2014
- ↑ Springfield News-Leader, "Our Voice: We consider ballot issues," July 22, 2014
- ↑ Southeast Missourian, "Editorial: Our take on August ballot issues," July 27, 2014
- ↑ West Plains Daily Quill, "Amendment 9 is unnecessary," August 1, 2014
- ↑ News Tribune, "Our Opinion: Amendment won’t be final word on digital privacy issue," July 31, 2014
- ↑ News Tribune, "Our Opinion: End of discussion; time to vote," August 4, 2014
- ↑ The Joplin Globe, "Our View: No need for No. 9," July 29, 2014
- ↑ Columbia Daily Tribune, "Amendments: Cluttering the Constitution," July 27, 2014
- ↑ St. Louis Post-Dispatch, "Editorial: Filling out the straight flush with two more bad amendments to reject," July 22, 2014
- ↑ The Kansas City Star, "Vote ‘no’ on gun and data questions in Missouri," June 23, 2014
- ↑ TMC.net, "EDITORIAL: The line is drawn on privacy [St. Joseph News-Press, Mo. :: ," July 6, 2014]
- ↑ 36.0 36.1 Pew Research Center, "July 2013 Omnibus Survey Week 2 Final Topline," July 17, 2013
- ↑ OpenStates.org, "SJR 27, Missouri Senate Joint Resolution," accessed May 26, 2014
- ↑ Missouri House of Representatives, "Roll call for SJR 27," accessed May 28, 2014
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