Privacy expectations should not be lost just because digital and electronic information is transferred through wires or enters a remote server (the Cloud). If the government searched an individual’s mail or home, it would need a warrant first. This same standard should apply to all property, including electronic data. But 48 of 50 states are failing to protect private data from government intrusion.
It’s no secret that technology develops faster than legal doctrines, statutes, and regulations. States have failed to keep up with necessary legal changes to protect citizens’ rights under the Fourth Amendment. This has left other forms of electronic data, notably stored communications such as what a user might save in the Cloud or on their laptop, unprotected from government searches.
Due to the “third party doctrine,” state and federal governments can access electronic data without a search warrant by utilizing online platforms. The “third party doctrine” holds that people who voluntarily give information to third parties, such as banks, phone companies, internet service providers, and email servers have “no reasonable expectation of privacy.”
California was the first state to protect third-party information from unwarranted government searches. Now, Utah has become the second state to pass legislation closing the third-party loophole and protecting Americans’ Fourth Amendment rights.
The Fourth Amendment ensures the right of the people to be secure in their persons, and property against unreasonable searches and seizures. This means a warrant based on probable cause must be issued before a place can be searched, or persons and things can be seized.
Utah’s legislation, the “Electronic Information or Data Privacy Act,” prevents law enforcement from accessing private electronic data stored with third parties such as Facebook, Dropbox, Twitter, or Google without a warrant.
Utah’s new law, similar to California’s, is in line with American Legislative Exchange Council principles. Both policies ensure that state law enforcement can only access someone’s transmitted or stored digital data (including writing, images, and audio) if a court issues a search warrant based on probable cause.
These policies contain provisions that promote government transparency and accountability. They also require agencies to notify owners when their data is searched. Most importantly, they prevent the government from using illegally obtained electronic data as evidence in court.
Why is this so important?
States’ current electronic data privacy protections rely on rulings in a few narrowly tailored Supreme Court cases. In the Supreme Court ruling Carpenter v. United States, the court acknowledged historic cell phone geo-location information classified as a Fourth Amendment search, requiring the government to obtain a warrant before searching this electronic data. In Riley v. California, the court ruled that warrantless searches of digital content of cell phones during an arrest was unconstitutional. Finally, U.S. v. Jones held that installing a GPS device on a vehicle and using the device to monitor the vehicle’s movement constituted as a Fourth Amendment search. These court rulings failed to protect numerous other forms of third-party information from unwarranted government searches
States including California, Washington, Illinois, and Texas have been focused on passing privacy legislation aimed at the private sector’s use of consumer data. But their concern seems somewhat misplaced. YouTube, Facebook, and others offer their services at no cost because users, in exchange for voluntarily using the platforms, allow some of their interactions with the service to be tracked. In that way, a platform is allowing consumers to monetize the data they are sharing, and in return the consumer receives improved and more personalized services for “free.”
In contrast, government searches of personal data can be used to convict them of crimes and send them to jail. For example, the government could sift through a conversation you had with Alexa to use as evidence for convicting an individual without receiving a warrant. That’s why Utah has taken aim at the bigger harm presented to consumers who use these third-party platforms — law enforcement and government agencies.
Both the American Legislative Exchange Council policy and the Electronic Information or Data Privacy Act are models for other states. The breakneck pace of technological change will continue to lead to an increase in the amount of private information citizens keep online. This presents an urgent need for the other 48 states to act.
Anna Parsons is the policy coordinator at the American Legislative Exchange Council, where she focuses on state technology policy in the Center for Innovation and Technology.
