In a referendum that could ultimately have national implications, Missouri voters will go to the polls Aug. 5 with the opportunity to add protection for electronic data and communications to their state constitution. Amendment 9 would give “electronic data and communications” the same state constitutional protections as “persons, homes, papers and effects.” This would eliminate any constitutional ambiguity surrounding electronic data and specifically bar state agencies from accessing it without a warrant in most cases.
By prohibiting state agents from “accessing” warrantless electronic data, it would make such data gathered by federal agencies such as the NSA and shared with state and local law enforcement inadmissible in state criminal proceedings.
The law has not kept pace with new technologies. As a result, both state and federal governments claim broad authority to track innocent people’s movements, purchases, reading habits and sometimes even private conversations, all without a warrant. Our correspondence and other “papers” don’t become less sensitive simply because we store them in electronic form.
Americans shouldn’t face a forced choice between using modern technologies and protecting their privacy. Amendment 9 would make 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. Forty years ago, even before the advent of the Internet, Sen. Frank Church warned America about the federal spy program, saying that the NSA could potentially bring about “total tyranny.” Congress had 40 years to do something to rein in the surveillance state, but failed to lift a finger. In fact, it’s made things worse.
Federal courts haven’t proved much better. Judges generally defer to the Congress and the president when they justify actions as necessary due to “national security issues.” The law concerning electronic communications remains far from “settled,” and we simply cannot depend on the federal government to protect our privacy.
While state action like Missouri’s cannot stop the NSA from collecting information illegally, it can protect people in that state from its practical effect. Along with barring state agents from engaging in illegal surveillance, it would prohibit state and local law enforcement from accessing warrantless data, even if federal courts ultimately place their seal of approval on mass surveillance. States can legally set a higher bar for privacy protection than the federal standard. This fact alone makes state actions such as Amendment 9 a powerful and effective tool for protecting basic privacy rights.
If Missouri voters approve Amendment 9, it will set the stage for similar initiatives in other states. Every state except Delaware can amend their state constitution through a legislatively referred referendum. Missouri offers a blueprint. We have the potential to blanket the country with constitutional provisions specifically extending privacy protection to electronic information and data. This would ensure state-level respect for privacy rights and address a practical effect of federal spying, regardless of how things play out in Congress or in federal courts.
OffNow plans to draft model legislation for introduction in state legislatures during the 2015 session. Our goal: get similar referendums on the ballot and before voters in as many states as possible.
The OffNow coalition is group of grassroots organizations and individuals spanning the political spectrum committed to stopping unconstitutional NSA spying through state and local activism.
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