Tenth Amendment CenterEFFERSON CITY, Mo., Aug. 5, 2014 – By a big margin at the polls on Tuesday, Missouri voters took an important step to protect their electronic communications and data from the prying eyes of state and local law enforcement, and also effectively blocked a small but intrusive practical effect of federal spying within the state.
Wtih a 75 percent YES vote, Missourians approved Amendment 9, giving “electronic data and communications” the same state constitutional protections as “persons, homes, papers and effects.” This eliminates any constitutional ambiguity surrounding electronic data and specifically bars state agencies from accessing it without a warrant in most cases.
The new amendment adds the italicized language to Section 15 of the Missouri Bill of rights.
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.
While a state constitutional amendment only binds state agencies and not the federal government, the amendment will protect Missourians from a practical effect of federal spying.
By prohibiting state agents from “accessing” warrantless electronic data, it makes such data gathered by federal agencies such as the NSA and shared with state and local law enforcement inadmissible in state criminal proceedings. This protection will remain in place for Missourians even if federal courts ultimately put the seal of approval on warrantless data collection by the NSA and other federal agencies.
That the NSA and other federal agencies pass illegally gathered information to state and local law enforcement isn’t mere speculation. We know for a fact it happens.
As revealed in a Reuters report last summer, the a formerly secret DEA unit known as the Special Operations Division (SOD) passes information collected without warrant by the NSA and other agencies to state and local law enforcement. In most cases, this information has nothing to do with terrorism, but related to everyday criminal cases. Federal agencies also almost certainly give warrantless information to state and local governments via Fusion Centers. These facilitate the exchange of information between state, local and federal agencies and make up part of the Information Sharing Environment (ISE), a consortium that includes the NSA, FBI, Department of Defense and many others.Fusion Centers “contribute to the ISE through their role in receiving threat information from the federal government.” In other words, they serve as one of the primary means of passing warrantless information along from federal to state and local agencies.
The state of Missouri can’t stop the federal government from violating the Constitution and basic privacy rights, but the new constitutional amendment does provide a mechanism to keep illegally gathered data out of state courts.
Missouri voters sent a strong message Tuesday – they want the state to take action to protect their privacy rights. Americans shouldn’t face a forced choice between using modern technologies and protecting their privacy. Passage of Amendment 9 makes it clear that in the same way the government must get a warrant to read people’s postal mail, it also must obtain a warrant to read people’s email.