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Proposed state constitutional amendment tackles electronic privacy rights

Sunday, July 27, 2014 | 6:00 a.m. CDT

COLUMBIA — Deadbolts protect a home. Safety deposit boxes protect valuable documents. Safes protect jewelry, guns and other personal possessions. But what secures electronic data from intrusion?

"Each individual user controls the fate of their privacy," said Detective Tracy Perkins of the Boone County Sheriff's Department Cyber Crimes Task Force. "But a lot of people don't know that."

Protecting your Privacy

Detective Tracy Perkins of the Boone County Sheriff's Department said the best way to protect yourself online isn't to depend on lawmakers or law enforcement — personal awareness and responsibility are key. Here are some suggestions:

  • "Do your research and know what you're going to be sharing. Know how the privacy settings are set and how to make yourself private," Perkins said. "Whenever you upload anything, you lose all rights to it. If you can upload it, I can download it, and if I can download it, then I can maintain it on my computer."
  • Checking your privacy settings on social media sites is a good first step, but be aware of what your settings are for apps or other third-party developers. Managing the settings on your smartphone and Web browser are other good ideas.
  • No matter your settings or how careful you are, it's best to assume that once something is online, it isn't private anymore. The only surefire solution is to pull the plug and power down your devices. "When we decide to get a smartphone that talks to the world at all given times, you're taking that risk," Perkins said. "If you don't want that, turn off the data."

 



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In light of the Edward Snowden revelations about surveillance programs under the jurisdiction of the National Security Agency, there is a movement toward protection from unwarranted searches and seizures of electronic information.

A proposed amendment to the state Constitution aims to provide that level of security. State Sen. Rob Schaaf, who introduced the amendment, believes there's a "national crisis" when it comes to electronic privacy and he feels the state needs to take action.

Amendment 9 will be on the ballot as a yes or no question in the Aug. 5 primary election.

Amendment purpose

The measure asks voters to decide whether to add electronic communications and data to the list of things already protected from unreasonable search and seizure by state law. If approved, the amendment would extend protection to information on electronic devices such as cellphones, laptops and tablets.

It reads: "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?"

Sean Grove, who works in State Rep. Paul Curtman's office, summed up what the proposed amendment will do with a simple analogy.

"If someone thinks their email should have the same protections that same content written on a piece of paper should have, then this would be an easy vote yes," Grove said.

Grove, who spoke at a League of Women Voters forum in Columbia on Thursday, said the amendment makes a level playing field for all law enforcement agencies and is better than handling the issue in a piecemeal fashion as he feels the state legislature is doing now.

Schaaf said the law will help prevent government from pre-emptively collecting electronic information if a crime has not been committed.

"We don't need our government sniffing around without a sense of law being violated," Schaaf said.

He said the change is necessary, especially now that people know more about NSA surveillance programs.

"Prior to Snowden, I think everyone knew the government was spying on us," Schaaf said. "But Snowden made it real for people. We didn't know for sure, but now we do."

Concerns raised

Several issues with the proposal have been introduced during the run-up to the August election.

One potential problem with the amendment is an absence of clear language defining electronic communication and data. Perkins said the language was "too broad" and hopes a clarification of terms will be forthcoming.

Schaaf countered by saying that the courts have developed a good body of law on Fourth Amendment rights, and he thinks the same can be done for electronic communication and data.

In a June 23 editorial, the Kansas City Star argued that "a vaguely worded amendment" isn't an appropriate way to deal with an important matter that is likely to be the subject of prolonged litigation.

According to the editorial, "The intent of Amendment 9 is good. But there’s been too little discussion about the potential consequences."

At the state and local level, Perkins said, she doesn't foresee the amendment affecting law enforcement agencies because they're already operating under the intent of the proposed change.

The task force is already following the Fourth Amendment when applied to electronic data, Perkins said. "We already follow that standard and literally have been since 2007 when we began. And for law enforcement in general, that's the standard. If you want the data, you gotta get a search warrant."

Others, including the St. Joseph News-Press, questioned the need for the amendment in light of a unanimous Supreme Court ruling in June that police need a warrant to search a cellphone.

"Modern cellphones are not just another technological convenience," Chief Justice John Roberts wrote. "It is no exaggeration to say that many of the ... American adults who own a cellphone keep on their person a digital record of nearly every aspect of their lives, from the mundane to the intimate."

Even supporters of the amendment acknowledge that it won't apply to federal agents or agencies and would have no effect on the driving force behind the proposed change — the NSA surveillance programs.

While something simple, such as an IP address, might be obtainable with a subpoena, Perkins said any personal information such as pictures, messages or other communication requires a search warrant if the information is not publicly available.

To get a search warrant, a crime has to have been committed, and probable cause needs to be established. Perkins also said law enforcement officials need to be specific about the type of information they're requesting as well as the time frame.

"If you don't ask for it, you don't get it," Perkins said. "It's not a free-for-all out there."

Grove, however, said a search warrant is "not necessarily the great impediment" law enforcement says because warrants are easier to get in a digital age.

Perkins still feels the amendment might be a knee-jerk reaction to the NSA surveillance programs and said it may have unintended consequences.

"They're trying to do it for the right reasons, but there's sometimes an over-reaction to it," she said.

Supervising editor is John Schneller.


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