Will Michigan Follow Suit?—Marijuana Crime Expungement
Hilary M. Barnard (10.2.2018)
California has introduced a new assembly bill that may offer persons with marijuana convictions to have their records expunged. (Assembly Bill 1793). This isn’t the first time a state looked to retroactively remove a marijuana conviction past. (Oregon). California’s plan, however would be the first time the removal is automated. (USA Today Article).
Michigan has a ballot proposal scheduled for this November to allow personal possession and use of marijuana by persons aged 21 and older. If it passes, it will be an interesting time to see if Michigan follows suit of other states and how long the process may take.
7th Circuit—Smart Electric Meter Reads Are Reasonable Searches
Hilary M. Barnard (8.22.2018)
A recent decision from the Court of Appeals for the 7th Circuit (the states of Illinois, Indiana, and Wisconsin) on August 16, 2018 determined that collection of data from smart meters constitutes a search and that this particular search is reasonable. See Naperville Smart Meter Awareness v. City of Naperville (7th Cir. 2018). This decision marks an interesting decision as technology continues to develop.
Under the Fourth Amendment, persons are protected against unreasonable searches and seizures. Further that without probable cause supported by oath or affirmation and particularity as to the place to be searched, persons and/or things to be seized no warrant shall issue.
This case examined smart meters for homes that were used by a locality’s public utility. As in, pretty much every home in the jurisdiction had to use the service. The smart meters pull data on a regular basis, the court rightly concluded that this is a search. The curious decision is that the court also found the search reasonable. In this case, the data was not available to law enforcement without warrant or court order. This last caveat is likely why the court found this type of data collection reasonable—to get the data law enforcement would need a warrant.
Why is this significant? As technology advances, more and more data and metadata are collected from people without their explicit, specific consent. (Think…how often do you read terms and conditions of use?) Data from things like internet data and phone location is a lot easier to come by in 2018 than it was in 2008, 1998, and so on. What can you learn from this type of data? —A lot. Where you go, when you’re there, when your house is empty, what appliances you use, and how often you use them. It’s a lot of information that the right people can use to pin point your life patterns. It sounds a bit like a conspiracy theory, and really it isn’t. The trouble comes when the wrong hands find your data.
For strong believers in 4th Amendment protections, this type of decision can start to lead down a slippery slope. Judge Kanne, who authored the opinion was very astute to include a caution—“[T]hat our holding depends on the particular circumstances of this case. Were a city to collect the data at shorter intervals, our conclusion could change. Likewise, our conclusion might change if the data was more easily accessible to law enforcement or other city officials outside the utility.” This is good news for citizen’s protections, but the reality of this type of data’s availability is still becoming increasingly prevalent.
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