Two new bills in the state legislature are aimed at protecting the privacy of Michigan residents.
One bill would require Michigan State Police to get a warrant before accessing a person’s electronic data.
Supporters of the legislation say they are particularly concerned that cloud data, controlled by a third party, can be handed over without a warrant.
Kimberly Buddin is with the ACLU of Michigan, which supports the legislation. She said some hosts of cloud data will keep law enforcement from accessing information without a warrant - but not all.
“The third party can say ‘yes’ because they are the person in charge of it they could give their consent if they wanted to. This would require them to get a warrant in the same way they would for accessing your physical phone and reading your text messages and things like that.”
Republican State Senator Peter Lucido introduced the measure.
“We’re finding ourselves where they are going into the cloud and extracting our information such as text messages, instant messages, photographs. It’s getting out of hand.”
Shanon Banner is a Spokesperson for the Michigan State Police. She said it is already department policy to obtain a warrant before accessing a person's electronic data.
The state police oppose the bill not, Banner said, because of the warrant requirement but because the bill requires individuals to be notified if a warrant is issued for their data. She said this could disrupt investigations and lead to evidence being lost.
Senator Lucido said the bill already includes exceptions for notifying someone - such as if a court has reasonable cause to believe the notification would lead to a person fleeing prosecution.
Buddin, with the ACLU, said the bill would also require state police to get a warrant before accessing cell phone location information. She said technologies like cell site simulators can trick cell phones into thinking they are cell phone towers.
“And then it would allow Michigan State Police and other law enforcement agencies to figure out where you are, how often you are there, and very personal information like that.”
A second bill, also introduced by Senator Lucido, would ban Michigan State Police from using facial recognition technology.
The state currently maintains a database of photographs which includes Michigan drivers license photos. Those photos can be used to help with identification of suspects.
Banner, with the Michigan State Police, said the technology is vital to performing investigations. She said facial recognition technology is just a more modern version of witness identification through photobooks and lineups.
Buddin said she has two concerns with the use of facial recognition software. FIrst, that some of the photographs in the database were obtained without consent. Second, the potential use of facial recognition to monitor residents.
“Your ability to go to a protest, your ability to go to certain types of events and express yourself and then being captured and run against a database is also very problematic.”
Banner said there are strict policies for using facial recognition technology - she said facial recognition can only be used on an individual when there is probable cause that the person has committed a crime.
Banner added that facial recognition technology is not able to scan live video feeds. She said real-time identification of members of a crowd in a public place just wouldn't be possible.
Here's how Banner explained the ways in which facial recognition software is used:
"An example of the services we provide would be a detective who is investigating a homicide at a store. If there is store security camera video of the suspect, our unit would attempt to isolate a frame of the video in which the suspect is visible, enhance it, and check it against the Statewide Network of Agency Photos (SNAP) database. Any resulting match(es) are then manually reviewed by a MSP facial examiner, all of which are trained to competency by the FBI on facial image comparison and identification. As I shared previously, if the examiner then determines there is a potential match, it is shared back with the detective as an investigative lead only. Facial recognition matches are never considered to be positive identification; they require further investigation before probable cause for an arrest can be determined."
You can view Michigan State Police policies for using facial recognition software here: https://www.michigan.gov/documents/msp/SNAP_Acceptable_Use_Policy_2016_03_07_533938_7.pdf
Senator Lucido said he is open to including exceptions in the legislation for times when facial recognition could be used. But, he said, state law needs to reflect the rapid advancement of technology like this.
“I definitely feel that there are safeguards that are needed today with technology the way it has gone and the way it is going because we need to keep our laws at least consistent with the way it is being produced.”
Buddin said the ACLU will work with legislators and state police to define how the technology should be used. But ultimately, she said, an outright ban seems like the best option.
The bills are currently before the Senate Committee on Judiciary and Public Safety.