New Protections for Your Digital Privacy

The following op-ed was published this weekend in the Deseret News.

Should agents of your government be able to access your cell phone location records whenever they want without getting a judge to sign off? Despite the government arguing in the affirmative, a recent U.S. Supreme Court opinion says otherwise.

The split 5-4 decision in the case of Carpenter v. United States puts a stop to the longstanding practice of tracking people’s movements via cell phone records without a warrant. The Court’s conclusion affirms what we all already think: we have a reasonable expectation of privacy in how, where, and when we use our phones.

Let’s frame the conversation a little differently. Imagine you’re renting an apartment to which your landlord has access in case of emergencies. Absent an emergency, do you think the government — without probable cause and a judge’s consent — should be able to have the landlord let them in to peruse your apartment while you’re away and without your knowledge?

The principle with cell phone records is the same. This data reveals substantial information about us, and it’s held in custody by the companies we contract with to provide us service. Just because it’s accessible to or stored by a third party doesn’t mean we aren’t interested in the information remaining private. As such, the government shouldn’t be able to access it whenever it likes, without good reason and due process.

We live in an age where profoundly private information is transacted between people through intermediaries. Intimate photos, sensitive financial documents, contracts, revealing text messages, and more are passed through — and stored by — third parties on our behalf. Does having a man in the middle mean the government should be able to simply ask that “man” to surrender our information at their mere request?

This is why the Carpenter case is so significant — it’s the first time in decades that the U.S. Supreme Court has reconsidered its position on this “third party doctrine” since 1979, when the so-called “justices” opined that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

That’s an argument that simply doesn’t fly in the digital age, when communication is effectively impossible without utilizing a third party. Snapchat, texting, and all your favorite apps require third parties to relay our messages. To say that life in the digital age inherently eliminates any expectation of privacy is absolutely absurd.  

Four years ago, Libertas Institute, ACLU Utah, and the Utah Association of Criminal Defense Lawyers proposed legislation to protect digital data. The law, passed nearly unanimously, states that “a government entity may not obtain the location information, stored data, or transmitted data of an electronic device without a search warrant.” It was, and remains, one of the nation’s best state laws protecting digital privacy.

But it’s not enough, as it doesn’t fully address the third party problem described above, nor does the law clarify what “transmitted data” actually means, leading to potential ambiguity and wiggle room around a warrant. Expect these problems to be addressed in the next legislative session, as we work with elected officials to strengthen your privacy rights further in light of the Court’s new opinion.

The implications of this opinion can and should apply to other forms of digital information, not merely your location information. As participants in a digital economy, we maintain an expectation of privacy in the data we share and store, whether it resides only on our device or it is passing through or stored on a remote server.

The Court’s view on the matter is a floor, rather than a ceiling — state legislatures can and should rise above this baseline protection to ensure that privacy protections extend broadly to new technologies and use cases.

Just Alito drove that point home in a recent opinion: ..”It would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.”

We hope and expect our state’s elected officials will rise to that occasion when presented the opportunity in the next legislative session.