The State of Missouri is on a nullification roll. While this second example of the state taking back control from the federal government is not on as firm constitutional grounds as the previous one I reviewed, I still like a state reminding us that they are sovereign. Not to mention reminding Washington who created them and set their boundaries in the first place.Missouri House Bill 296, called “Fourth Amendment Rights Protection Act“, is a bill to prevent state resources from being used to collect personal electronic or metadata for the federal government without a warrant. I wrote about the state’s Second Amendment Preservation Act in my article “Show Me” Nullification. After defining the terms electronic data and metadata, the bill goes on to state:
This state and its agencies, political subdivisions, special districts, or employees shall not assist, participate with, or provide material support or resources to a federal agency to enable it to collect or facilitate in the collection or use of a person’s electronic data or metadata unless one or more of the following circumstances apply:
(1) The person has given informed consent;
(2) The action is pursuant to a warrant that is based upon probable cause and particularly describes the person, place, or thing to be searched or seized; or
(3) The action is in accordance with a legally recognized exception to the warrant requirement.
The idea here is simple, and I love simple legislation: The state believes that the collection of a person’s electronic or meta data without a warrant is a violation of their 4th Amendment protection against unreasonable search and seizure.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Since Missouri is a party to the compact that is the U.S. Constitution, they do have a say in what that document means. And, since Missouri is a sovereign state, their legislature has the authority to determine where, how, and under what circumstances state resources can be used. However, as I discuss in my article Meta Data and the 4th Amendment, there is one little Constitutional problem here. Who does the meta data belong to?
I see no constitutional issue with ensuring the protection of a person’s electronic data. After all, today most of what used to be called our “papers” is now stored as electronic documents. Since many of those documents are now stored in cloud-based services, which the supreme Court has deemed beyond 4th Amendment protection (an opinion I strongly disagree with, and discuss in my article Carpenter v. United States), I still have to ask: What about the meta data? You see, what most people define as meta data includes information created by a service provider and not by the originator of the communication.
“Electronic data”, information related to an electronic communication or the use of an electronic communication service including, but not limited to, the contents, sender, recipients, or format of an electronic communication; the precise or proximate location of the sender or recipients of an electronic communication at any time during the communication; the time or date the communication was created, sent, or received; and the identity of an individual or device involved in the communication including, but not limited to, an internet protocol address.
Information like the sender and recipient of electronic data, i.e., the date, time and duration of any communication, and the location (including network addresses of the parties involved), are created and used by service providers in order to supply, and in some cases bill, for their services. If you did not create the data, how can it be yours? And if it is not yours, how is it protected by the 4th Amendment?
I agree with what I believe the State of Missouri is trying to do, protecting not only the documents of their citizens, but information about them as well. I believe Missouri’s state legislature is trying to protect the spirit of the 4th Amendment, even if it goes beyond the actual wording of the law. And as I said previously, as a party to the compact, the State of Missouri has a say in what the compact means. Rather than just preventing state resources from assisting the federal government in collecting this data though, I would like to see this legislation followed up with a proposed amendment to the Constitution:
The right of the people to be secure in their persons, houses, documents, papers, and effects, including data and records created by them or about them, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
By adding the underlined language, Fourth Amendment protections will be extended to the intangible information that is so much a part of our 21st century lives. This language also protects data we store in the cloud and information created about us by third parties. This would not only protect your phone meta data, but also your medical and bank records, both of which are under attack. You can read more about this in my review of the Carpenter v United States decision from the supreme Court.
