Arizona residents have a constitutional right to online privacy to keep police from learning their identity without first getting a warrant, according to a state appeals court.
In its ruling last week, the Arizona Court of Appeals, Division Two, said internet users have a “reasonable expectation of privacy” that personal information, such as names and addresses they give to internet providers, will be kept secret.
As such, police and government officials cannot obtain that information without a search warrant, the court ruled. Officials typically need to demonstrate some evidence of criminal activity to get a search warrant signed by a judge.
The ruling is noteworthy since federal courts have in the past ruled that when people supply information to a third party, such as an internet service provider, they relinquish any expectation of privacy.
Some have interpreted that to mean that the U.S. Constitution’s Fourth Amendment protections against unreasonable search and seizure no longer apply and the government doesn’t need a warrant.
However, appellate Judge Karl Eppich said that argument doesn’t apply with regards to Arizona’s state constitution, which says, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
In the U.S. Constitution, there is no specific guarantee of the right of privacy.
The case in question involved an undercover police operation in Pima County where a detective investigating child exploitation placed an ad on an online forum soliciting child pornography.
Court records revealed that William Mixton responded to the detective by sending pornographic images of children.
At that point, the detective had federal agents issue an administrative subpoena for Mixton’s IP address, a unique number assigned to users connected to the internet.
Through the IP address, the detective identified Mixton’s internet provider, which eventually led to his street address. That information was enough for police to obtain a search warrant and seize computers with images of child pornography.
Mixton was found guilty of 20 counts of sexual exploitation of a minor younger than 15 and sentenced to 17 years in prison on each count, to be served consecutively, in effect a 340 year jail sentence.
His attorney argued police should never have been able to get his IP address in the first place without an actual warrant.
Eppich said that Mixton’s contention was without basis under the U.S. Constitution, since he voluntarily provided information to his internet provider to get service. But Arizona’s state constitution and its specific right of privacy was a different story.
Eppich compared today’s electronic storage of information to that of “a personal desk drawer as the repository of sensitive personal and business information – information that would unquestionably be protected from warrantless government searches if on a paper desk at a home or office,” he wrote.
He added, “We doubt that the framers of our state constitution intended the government to snoop in our private affairs without obtaining a search warrant.”
Eppich also rejected arguments by prosecutors that internet users give up an expectation of privacy because they “voluntarily” self-identify to get service.
He said that users provide information for the limited purpose of obtaining service and that “It is entirely reasonable for the user to expect the provider not to exceed that purpose by revealing the user’s identity to authorities in a way that connect it to his or her activities on the internet.”
Eppich also warned that giving the government broad powers could impact the “right of free association,” whereby a person’s identity could be gleaned from subscriber information.
“To allow the government to obtain, without a warrant, information showing who a person communicates with and what websites he or she visits may reveal a person’s associations and therefore intrude on a person’s right to privacy in those associations,” Eppich wrote.
In his dissenting opinion, Judge Philip Espinosa said he does not interpret state constitutional protections that broadly.
Espinosa said that while much of the information being collected today is and should be constitutionally protected, he said information such as an IP address should not have constitutional protection any more than, for example, a personal telephone number.
He found that the information was legitimately sought by law enforcement for the sole purpose of identifying the source of suspected child pornography distribution.
He added that no First Amendment protections were at issue since the case involves “criminally perverted speech” that is not constitutionally protected.
Mixton’s conviction was upheld because the police ultimately used a warrant to obtain their evidence.
“Although the evidence used to convict Mixton was obtained in violation of his right to be free from government interference in his private affairs … the good faith exception to the exclusionary rule applies,” the court wrote. “We therefore affirm his convictions and sentences.”