Ballot Briefing: Amendment 9 and electronic privacy

Missouri Ballot Briefing - With Banner

Leading up to Missouri’s Aug. 5 primary election, Missouri Business Alert is examining the ballot measures that will be put to voters. Today’s focus is Amendment 5, which would strengthen the language of the Missouri constitution regarding the right to bear arms. 

Missouri Business Alert’s complete coverage of the ballot measures is available here.

The U.S. Constitution’s Fourth Amendment assures citizens’ right to “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

The U.S. Supreme Court added cell phones to that list with a unanimous decision in Riley v. California on June 25.

And now Sen. Robert Schaaf, R-St. Joseph, wants to expand the state’s constitutional protections to all Missourians’ electronic communications and data unless a warrant is issued. That’s what Amendment 9, one of five measures up for public consideration on the Aug. 5 primary ballot, aims to do.

Missourians will see the following on the ballot next Tuesday:

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?

Schaaf said that he sponsored the measure in light of  the National Security Agency’s data collection program, and he believes that Riley v. California is just the first step in creating stronger protection for citizens’ privacy.

Rob Schaaf | Courtesy of the Missouri Senate
Robert Schaaf | Courtesy of the Missouri Senate

Riley v. California is a decision that proves that, at least before that decision, there was a problem for cell phones, but it doesn’t talk about computers, PDAs, thumb drives or other devices,” Schaaf said.

“There’s a national crisis and concern about intrusion into our electronic communications and data,” he added. “Amendment 9 is the first step in the process. We want to get this for Missouri and then take it to other states and get it adopted nationally.”

A resolution to put the amendment on the ballot passed the Missouri House 114-28. Sen. Maria Chappelle-Nadal, D-University City, was the only member of the Senate to vote “no” on the bill, citing reservations about the vague language used in the bill.

“[I]nserting this kind of vague language into the Missouri Constitution could hamstring the courts when there may be more nuance required in interpreting what is ‘private communication,’” Chappelle-Nadal said in a written statement, adding that unintended consequences of the bill could make prosecuting cybercrimes more difficult.

University of Missouri-Kansas City law professor Allen Rostron said that courts could see the public ratification of the amendment as a mandate to apply it in a broad and powerful sense. But Dan Viets, director of the Mid-Missouri chapter of the American Civil Liberties Union, said that the vagueness is the point.

“It is a general broad statement that the government should not be involved with your day-to-day electronic communications,” Viets said.

As for any potential difficulties in criminal prosecution, Schaaf said that law enforcement will only need probable cause to gain access to a warrant for the protected data.

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