The U.S. Supreme Court has upheld privacy protections against police searches of cellphones, but Missouri voters looking to fortify those rights will get their chance next week.
The Aug. 5 ballot measure known as Amendment 9 would require police to obtain a warrant before searching or seizing "electronic communications and data," such as cellphones, emails and computer flash drives. Supporters argue that including those protections in the Missouri Constitution could help guard against excessive government intrusion, and they cite the recent National Security Agency eavesdropping scandal as motivation.
"People are outraged at the invasion of their privacy, and they want to fight back," said Sen. Rob Schaaf, a St. Joseph Republican and organizer of the Protect Our Privacy campaign committee.
But the proposal may have little actual effect because courts already have ruled that the U.S. Constitution's search-and-seizure protections apply to modern digital devices, said Kansas City attorney David Oliver, whose firm deals with privacy cases.
"This may make the proponents feel good, that there is this provision in Missouri's constitution," he said. "I don't think it has that much practical significance."
Still, amendment backers say a constitutional safeguard is far more preferable than continuing to rely on the courts - or Congress - for updated interpretations of the U.S. Constitution's Fourth Amendment, written two centuries ago. The federal Electronic Communications Privacy Act was passed nearly three decades ago in a belated attempt at legal catch-up, albeit at the dawn of the Internet but before cellphones and digital cloud storage.
"It is a core American value that the government doesn't go on fishing expeditions, searching through our papers and things, looking at our communications, following us around," said Jeffrey Mittman, executive director of the ACLU of Missouri, which has launched a "Yes on 9" campaign to boost support for the proposed amendment. "Amendment 9 makes it crystal clear that those protections that have been part of our democracy for over 200 years also cover our electronic communications."
The exact question before voters will read: "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?"
The resolution to place the measure on the ballot was approved in the Missouri House 114-28, and it received only one "no' vote in the Senate. That vote was cast by Sen. Maria Chappelle-Nadal, a Democrat from University City who said she objected to the proposal's overly broad wording and the possible restrictions it might place on police and prosecutors, including those fighting sex trafficking and child pornography.
But both Schaaf, who co-sponsored the resolution, and Mittman said a broadly written amendment was needed, even though the U.S. Supreme Court unanimously ruled that police must show probable cause and obtain search warrants before seizing cellphones.
"Technology has taken off at a startlingly fast rate," Mittman said. "Our rules, regulations, ordinances and statutes have not kept up with the pace of change."
As of Monday, just nine days before the vote, no organized opposition had emerged, including among Missouri prosecutors and law enforcement officers. The digital privacy amendment is one of five proposed constitutional changes on the statewide ballot.
Pettis County Sheriff Kevin Bond, president of the Missouri Sheriffs' Association, said he expects few problems should voters approve the measure, though he noted it could conflict with a 2013 state law that allows drivers to show electronic proof of car insurance. He also noted that even before the U.S. Supreme Court ruling, his deputies would request warrants before searching phones and computers during traffic stops if the owner did not provide verbal consent.
"I don't see any problem with the passage of this amendment," Bond said. "I don't really have any heartburn over it."