The most intimate information can be found in the data on our cellphones and laptops, from geo-location data to search history. The level of privacy protections afforded to electronic data and communications have been unclear and ambiguous for years, but after this election, Michigan now has some clarity.

On November 03, 2020, Proposal 2 was passed by an overwhelming majority, amending Article 1, Section 11 of Michigan’s Constitution. Proposal 2 will provide personal protections by prohibiting unreasonable searches or seizures of electronic data and communications. It will do so through requiring law enforcement to obtain a search warrant to access an individual’s electronic data and communication under the same conditions needed to search through an individual’s home or seize an individual’s papers or physical items.

The amendment will fill a gap in the Michigan Constitution. Before the passing of Proposal 2, the Michigan Constitution provided protections against unreasonable searches and seizures for physical items but did not explicitly mention electronic data or communications. With the amendment to the Michigan Constitution, there will be no more ambiguity over whether data — such as cell phone data, communications with Alexa and Google Home, or Apple Watch health metrics — is private and requires a warrant to be searched or seized by law enforcement in Michigan.

Michigan is not the first state (and likely won’t be the last) to provide some level of protection for electronic data and communications. Utah has enacted a law banning warrantless searches and seizures of electronic data and communications. Moreover, the Florida Constitution mentions “the right of the people to be secure … against the unreasonable interception of private communications.” However, both Utah and Florida’s protections are not as strong as Michigan’s explicit protections in a constitutional amendment. Going forward, it is likely that more states will follow Michigan’s lead in protecting electronic data and communications through constitutional amendments.

Continue to look for further updates and alerts from Bradley on state privacy rights and obligations.