Many Missouri lawmakers think an amendment on the Aug. 5 ballot will bring privacy protection in the state into the 21st century.
Amendment 9 would change the state constitution to add privacy protections for Missourians’ electronic data and communications, requiring police to get a warrant to search or seize cellphones, emails or other electronic data.
Although some wonder whether the amendment is even necessary, the sponsors have little doubt.
“This amendment is a simple and eloquent way to bring our constitution up to speed with technology,” said Sen. Rob Schaaf, a St. Joseph Republican. “I suspect Missourians will overwhelmingly support it.”
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When the U.S. Constitution was drafted, the Founding Fathers could not have predicted emails and texts, said Rep. Paul Curtman, a Union Republican who also sponsored the proposal. If they had, they would have extended Fourth Amendment protections against search or seizure of an actual mailbox to also protect electronic communication, he said.
“This is what the Fourth Amendment was originally written for, and it can carry right over to electronic communication,” Curtman said. “If the House and Senate are any indication, Missouri voters will be in favor. It’s a bipartisan issue; we all have in common a desire for privacy.”
About 80 percent of the House and 96 percent of the Senate voted in favor of the proposed amendment.
Some lawmakers who voted against it cited vague wording and an impediment to prosecuting cyber crimes.
“... Inserting 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,’” said Sen. Maria Chappelle-Nadal of University City, a Democrat and the only no vote in the Senate.
“Some concerns have been raised over the unintended consequences this amendment might have, especially the possibility of making it more difficult for law enforcement to pursue cyber crimes, such as sex trafficking and child pornography.”
Rep. Jeremy LaFaver, a Kansas City Democrat, said he voted against Amendment 9 because he thinks the courts should decide whether electronic data or communication is governed under Fourth Amendment law.
In most cases, police already are required to get a warrant, he said, making the ballot proposal “a solution in search of a problem.”
“I don’t know what problem it’s trying to solve, which makes me think it’s politically motivated instead of policy-motivated,” LaFaver said. “We ask a lot of questions for voters’ review, and I’m disappointed this is one of them.”
David Oliver, a partner at Berkowitz Oliver law firm in Kansas City, which deals with privacy cases, said a recent Supreme Court opinion may lessen the effect the amendment would have.
In a unanimous Supreme Court decision last month, justices ruled that police generally must first get a warrant before searching the cellphones of people they arrest.
“It makes this amendment less of a big deal,” Oliver said. “I almost think that they don’t need to do this at all. But federal/state conflict comes into play here. State lawmakers don’t want to rely on federal law; they are wanting to enshrine their own.”
The proposed amendment would still have significance if it ultimately leads Missouri courts to decide to give stronger protection than federal courts and the federal constitution will, said Allen Rostron, a constitutional law professor at University of Missouri-Kansas City. The proposed amendment uses broader language than the court decision, expanding protection beyond cellphones, he said.
“The Missouri ballot measure relates only to the Missouri state constitution,” Rostron said. “So it isn’t rendered totally obsolete by the Supreme Court’s decision, which relates only to the U.S. Constitution.”
The Supreme Court decision was a step in the right direction, but Missouri lawmakers still need to make a clear statement that 21st-century communication falls under privacy protection, said Jeffrey Mittman, executive director of the American Civil Liberties Union of Missouri.
“As technology has progressed rapidly, our law has fallen behind,” Mittman said. “Our leaders need to act on our behalf to establish law.”