Date: 05/01/2014

Final
BILL SUMMARY for SCR14-002

HOUSE COMMITTEE ON JUDICIARY

Votes: View--> Action Taken:
Postpone SCR14-002 indefinitely. The motion passed
Refer SCR14-002 to the Committee of the Whole. The		PASS
FAIL



02:08 PM -- SCR14-002

The committee recessed.


02:14 PM

The committee returned to order. Representatives Nordberg and Salazar, prime sponsors, presented Senate Concurrent Resolution 14-002, concerning submitting to the registered electors of the state of Colorado an amendment to the Colorado Constitution concerning the protection of electronic data from unreasonable searches and seizures. Committee members received copies of a newspaper editorial supporting the resolution (Attachment B). Representative Nordberg explained the effect of the resolution, and discussed the increased reliance of the public on electronic means for data storage and communications. Representative Nordberg rebutted opposition to the resolution, and discussed recent United States Supreme Court action on searches of electronic communications devices. Representative Salazar discussed security associated with the use of electronic devices, and jurisprudence in the area of searches of electronic data. Discussion ensued regarding the public expectation of privacy with respect to electronic data, and the threshold for the government to access electronic data.

14HseJud0501AttachB.pdf14HseJud0501AttachB.pdf

02:26 PM

Discussion ensued regarding the public expectation of privacy for personal data stored "in the cloud," and the practical effect of amending the Colorado Constitution through Senate Concurrent Resolution 14-002. Representative Salazar responded to questions regarding jurisprudence in the area of searches of electronic data, and the inclusion of electronic data within the concept of "effects," as found in Article II, Section 7 of the Colorado Constitution. Discussion followed regarding certain unintended consequences associated with passage of the resolution, and the potential for entering its provisions in statute rather than the state constitution. Discussion turned to the fiscal impact of the resolution, and existing legal exceptions to search and seizure restrictions.


02:43 PM

Discussion returned to recent activity in the U.S. Supreme Court on issues associated with the search of electronic data.


02:45 PM

The following persons testified regarding Senate Concurrent Resolution 14-002:

02:45 PM -- Mr. Tom Raynes, representing the Colorado District Attorney's Council, testified in opposition to the resolution. Mr. Raynes explained why he feels the resolution is unnecessary, since technological advancement does not require the continual updating of the concept of "effects." Mr. Raynes discussed jurisprudence in the area of searches of electronic data, and the concept of the expectation of privacy. Mr. Raynes provided some history regarding Fourth Amendment jurisprudence, including the history of privacy expectation. Mr. Raynes discussed the timelessness of the language in Article II, Section 7 of the Colorado Constitution, and spoke against amending the constitution.


02:55 PM

Mr. Raynes responded to questions regarding the potential harm that may be caused by Senate Concurrent Resolution 14-002. Discussion ensued regarding the position of the American Civil Liberties Union on the nature of electronic data. Discussion followed regarding the difference between the Colorado and United States Constitutions. Discussion turned to protections of data stored in means other than electronic means.

03:03 PM -- Mr. Rich Orman, representing the 18th Judicial District, testified in opposition to the resolution. Mr. Orman explained why the resolution is unnecessary, and discussed the greater privacy rights afforded by Colorado law as compared to federal law. Mr. Orman discussed the flexibility of statutes when compared to the state constitution. Mr. Orman responded to questions regarding Colorado case law that protects personal information held by a third party. Discussion ensued regarding this point.

03:14 PM -- Mr. Andrew Cooper, representing the 18th Judicial District, testified in opposition to the resolution. Discussion ensued regarding changes to the resolution reflected in the reengrossed version. Mr. Cooper explained how electronic data is a subset of effects, and discussed the potential for police to be barred from accessing certain electronic data that is freely available to the public under the resolution. Mr. Cooper discussed potential litigation costs associated with the passage of the resolution. Discussion followed regarding cost considerations for amending the Colorado Constitution.

03:24 PM -- Mr. Matthew Durkin, representing the Attorney General's Office, testified in opposition to Senate Concurrent Resolution 14-002. Mr. Durkin addressed questions posed earlier about the potential for unintended harm to result from the passage of the resolution, and discussed limitations placed on searches by courts using the existing constitutional language pertaining to searches and seizures. Discussion ensued on this last issue.

03:31 PM -- Ms. Denise Maes, representing the American Civil Liberties Union, testified in support of the resolution. Ms. Maes rebutted claims that the resolution is unnecessary by noting that jurisprudence in the area of search and seizure of electronic data is unsettled, and discussed law enforcement's position on search and seizure involving new forms of communication. Ms. Maes addressed earlier discussion about changing the Colorado Constitution, rather than incorporating the provisions of the resolution into statute. Representative McLachlan questioned Ms. Maes' testimony, and stated his position on the resolution. Ms. Maes responded to questions regarding arguments made in case law pertaining to searches and seizures of electronic data.

03:42 PM -- Ms. Peg Ackerman, representing the County Sheriffs of Colorado, testified in support of Senate Concurrent Resolution 14-002. Ms. Ackerman discussed concerns expressed by the citizenry about government surveillance.

03:44 PM -- Mr. David Kopel, representing himself, testified in support of the resolution. Mr. Kopel provided some background on jurisprudence in the area of privacy protections, and explained that courts sometimes fail to uphold privacy protections. Mr. Kopel explained that the courts are the last line of protection for constitutional rights, and discussed the importance of constitutional protections for the citizenry, as compared to statutory protections. Mr. Kopel discussed the definition of "effects," and the accessibility of various types of electronic media and associated privacy expectations.


03:57 PM

Mr. Kopel discussed legislation similar to Senate Concurrent Resolution 14-002 pending in Missouri. Mr. Kopel responded to questions regarding case law pertaining to seizure of electronic data. Discussion ensued regarding searches incident to arrests, and court rulings on this issue.


04:03 PM

No amendments were offered to Senate Concurrent Resolution 14-002.
BILL:SCR14-002
TIME: 04:05:23 PM
MOVED:Salazar
MOTION:Refer SCR14-002 to the Committee of the Whole. The motion failed on a vote of 4-6.
SECONDED:Lawrence
VOTE
Buckner
No
Court
No
Gardner
Yes
Lawrence
Yes
McLachlan
No
Murray
Yes
Pettersen
No
Salazar
Yes
Waller
Excused
Lee
No
Kagan
No
YES: 4 NO: 6 EXC: 1 ABS: 0 FINAL ACTION: FAIL


BILL:SCR14-002
TIME: 04:17:21 PM
MOVED:Kagan
MOTION:Postpone SCR14-002 indefinitely. The motion passed on a vote of 6-4.
SECONDED:Pettersen
VOTE
Buckner
Yes
Court
Yes
Gardner
No
Lawrence
No
McLachlan
Yes
Murray
No
Pettersen
Yes
Salazar
No
Waller
Excused
Lee
Yes
Kagan
Yes
Final YES: 6 NO: 4 EXC: 1 ABS: 0 FINAL ACTION: PASS