FOURTH AMENDMENT RIGHTS PROTECTION ACT

House Bill 4430 reported from committee as substitute H-1

Sponsor:  Rep. Martin Howrylak

Committee:  Judiciary

Complete to 12-21-17

BRIEF SUMMARY:  House Bill 4430 would create the Fourth Amendment Rights Protection Act to restrict when the state may assist a federal agency in obtaining a person’s electronic data or metadata.

FISCAL IMPACT:  The bill would have no direct fiscal impact on the state or local governments.

THE APPARENT PROBLEM:

According to committee testimony, federal surveillance is increasing and spreading to a person’s data and metadata. Because there is a reasonable expectation of privacy in this data, collection of it is protected under the Fourth Amendment right against illegal searches and seizures. Legislation has been offered to prohibit Michigan from assisting federal agents in any collection of illegally obtained electronic information.

THE CONTENT OF THE BILL:

Under the bill, the state, or a political subdivision of the state, would be prohibited from assisting, participating with, or providing material support or resources to a federal agency in the collection or use of a person’s electronic data or metadata unless one or more of the following circumstances apply:

·         The person whose data or metadata are being collected or used gives informed consent to that collection or use.

·         The action is conducted under a warrant that is based upon probable cause and particularly describes the person, place, or thing to be searched or seized.

·         The action is in accordance with a legally recognized exception to warrant requirements.

Definitions

“Electronic data” would be defined by the bill as information related to an electronic communication or the use of an electronic communication service, including, but not limited to, the following:

·         The contents, sender, recipients, or format of an electronic communication.

·         The precise or approximate location of the sender or recipients of an electronic communication at any time during the communication.

·         The time or date the communication was created, sent, or received.

·         The identity of an individual or device involved in the communication, including, but not limited to, an internet protocol address.

Electronic data would specifically exclude subscriber information.

“Metadata” would mean information generally not visible when an electronic document is printed describing the history, tracking, or management of the electronic document, including information about data in the electronic document that describes how, when, and by whom the data were collected, created, accessed, or modified and how the data are formatted. Metadata would specifically exclude any of the following:

·         A spreadsheet formula.

·         A database field.

·         An externally or internally linked file.

·         A reference to an external file or hyperlink.

The bill would take effect 90 days after its enactment.

ARGUMENTS:

For:

A person’s data and metadata could be extremely personal and private, kept away from public view. The Supreme Court of the United States has ruled many times that a person has a right to privacy, and when the government wants to intrude on that privacy for any reason, probable cause must be present and a warrant must be obtained or a warrant exception must apply.[1] This bill would codify a person’s privacy rights to their data and metadata to protect against warrantless searches lacking probable cause and to ensure that Michigan agents will not assist federal agents in illegal seizures of data and metadata.

Against:

Concerns were raised against the bill in the interpretation of specific language. Under the bill, officers would be allowed to assist federal agents, but only in 3 specific circumstances, all of which pertain to a warrant exception under the Fourth Amendment. As the bill is written, it can be interpreted as prohibiting assistance under any other circumstance, even if the assistance is legal or required under another part of the law. For instance, the state is required to share with the federal government information relating to auto accidents. Autonomous vehicles and their technology are on the rise, and critics of the bill were concerned that if an autonomous vehicle were involved in an auto accident, the bill’s language would interfere with the requirement to share information, which would be obtained without informed consent or a warrant and thus would be outside the scope of a warrant exception.  

POSITIONS:

A representative from the American Civil Liberties Union of Michigan testified in support of the bill. (11-28-17)

A representative from the Department of Technology, Management, and Budget testified in opposition to the bill as introduced, and as neutral to the H-1 substitute reported from committee. (11-28-17)

                                                                                        Legislative Analyst:   Emily S. Smith

                                                                                               Fiscal Analysts:   Kent Dell

                                                                                                                           Michael Cnossen

■ This analysis was prepared by nonpartisan House Fiscal Agency staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.

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