A court ruling by the Arizona State Court of Appeals has affirmed that Arizona’s state right to privacy, guaranteed by the state’s constitution, also extends to internet privacy. Specifically, this court ruling means that police in Arizona will need to get a warrant to ask Internet Service Providers (ISPs) for information about a particular IP address – even name and home address. Information that an ISP could and often do provide law enforcement range from name and billing address to internet history.
Historically, ISPs and other data providers such as mobile data providers have made it a business practice to provide these types of information to both governments and even non governmental entities such as marketing and advertising firms all without a warrant. For the former, ISPs sometimes require that law enforcement fill out an exigent circumstance form instead of providing a warrant. For the latter, ISPs and other data providers have been given the green light by the US government to sell your internet history in 2017 .
The specific right to privacy clause in the Arizona State Constitution reads:
“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
Arizona reminds us that the Fourth Amendment of the US Constitution does not protect internet privacyNotably, the court emphasizes that the Fourth Amendment of the federally binding US Constitution does not protect internet users from having their information handed over to law enforcement without a warrant because users willingly give that information to the third party (the ISP in this case). In his written opinion, Arizona appellate court Judge Eppich explained that the third party doctrine definitely does not apply here:
“In the internet era, the electronic storage capacity of third parties has in many cases replaced the 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. […] The third-party doctrine allows the government a peek at this information in a way that is the 21st century equivalent of a trip through a home to see what books and magazines the residents read, who they correspond with or call, and who they transact with and the nature of those transactions. We doubt that the framers of our state constitution intended the government to snoop in our private affairs without obtaining a search warrant.”
Unfortunately for 320 or so million Americans that do not live in Arizona, their state constitutions and courts have not made this specific ruling. Though Arizona is not the only state to have a state constitution guaranteed right to privacy that goes above and beyond the federal US Constitution’s Fourth Amendment rights, it is the first to have a court rule as such. Internet privacy is a real concern for Americans, though the laws in the books haven’t caught up yet.