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Supreme Court opens door for more privacy intrusion

The Arizona Supreme Court from left are James Beene, Andrew Gould, Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery.

The Arizona Supreme Court from left are James Beene, Andrew Gould, Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery.

An Arizona Supreme Court ruling January 11 allows police to obtain information about people’s internet activity and identity without first getting a search warrant, making it easier for the government to see what most consider to be private information about their online habits.

In an unusual 4-3 split decision, the majority said police may obtain internet users’ IP addresses and personal information they give their internet service providers using only subpoenas. Combined, this information can be used to uncover people’s identities, internet activities and otherwise-anonymous internet speeches.

The ruling stems from a 2016 Tucson Police Department child pornography investigation in which an undercover detective posted advertisements to an online forum asking for child pornography.

After William Mixton responded with images and videos of child pornography, federal agents issued a subpoena for his IP address, followed by another subpoena to his internet provider, which generated his name, street address and phone number. A search warrant for Mixton’s residence uncovered his possession of child pornographic material.

Mixton was convicted on 20 counts of sexual exploitation of a minor under 15 years old and appealed, arguing the information that led to his arrest was protected by the Fourth Amendment and required a search warrant to be obtained, not a subpoena.

William Mixton

William Mixton

The case looks to be the first in Arizona to closely explore the state Constitution’s protections of “private affairs” and a federal court precedent from the 1970s saying information a person provides to a third party, like an internet provider, holds no “reasonable expectation of privacy” and therefore doesn’t require a warrant for police to obtain.

The majority opinion, written by Justice John Lopez, said because internet users can protect their IP addresses by taking measures like using public libraries, public WiFi at private businesses or a VPN, they do not have “reasonable expectation of privacy” for that information.

Lopez said much of the data users give to tech companies is used to track them anyway, sometimes pinpointing their identities or tracking them across apps and websites.

The dissenting opinion, written by Justice Clint Bolick for himself, Chief Justice Robert Brutinel and Vice Chief Justice Ann Scott Timmer, argued that allowing police to access that information without a warrant violates Arizonans’ right to privacy under Arizona’s Constitution.

Many consider the state Constitution more broadly protective of privacy than the U.S. Constitution’s protection against unreasonable search and seizure. It promises “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

The dissent argued that because the information provided by an IP address or to a service provider is necessary to use the internet at all, and is provided “for a limited purpose and with the expectation it will not be shared with others,” it qualifies as a “private affair” and the government should have no more right to access it freely than it does to look through a person’s text messages or credit card information.

“The notion that anything one must share for purposes of voluntary transactions is thereby subject to government inspection would eviscerate any meaningful notion of privacy,” Bolick wrote.

The majority said IP addresses and information given to internet service providers are not a “private affair,” as they do not reveal intimate details about a person, a person’s online activities are regularly shared for other reasons, and the information in question belongs to the third party provider, not the person who shared it.

Although Mixton desired anonymity during his exchange with the undercover detective, he had no reason to assume he would remain anonymous because information connecting his activities to his computer was exposed through his unconcealed IP address, Lopez wrote.

While the dissent said accessing a user’s internet information without a warrant violates their right to anonymity, Lopez compared an IP address to a return address on an envelope.

“Although we embrace the principle of anonymous speech and recognize its inestimable contribution to our liberty, authoring an essay under the pseudonym ‘Publius’ does little to preserve the author’s anonymity if the exterior of the envelope containing the essay reads ‘From the Office of Alexander Hamilton,’” Lopez wrote.

According to Paul Bender, law professor and dean emeritus for Arizona State University’s Sandra Day O’Connor College of Law, the split decision on the case is “extremely unusual,” and opens up a conversation about the Arizona Constitution’s privacy clause, which he said has almost never been used.

“That is significant, not only for itself but also because it may indicate the character of the Arizona Supreme Court may be changing,” Bender said. Traditionally, justices have tried to be unanimous as much as possible, but this may be the start of a trend toward more division, he said.

“There’s a big opening here for the Arizona Constitution to give more significant protection,” Bender said. “And the fact that three justices want to do that is quite significant. That hasn’t happened in the past, except in much more minor technical matters.”

While the decision speaks to a very specific type of information, Bender and Paul Avelar, an attorney for Institute for Justice, said the decision opens up a new conversation about privacy in Arizona courts.

Avelar said when people think about the Constitution’s protection against searches and seizures, they often think of people accused of “horrible crimes, as is the case with Mixton himself,” but that this decision has implications for any Arizonan.

“This decision does most specifically free up government to, without a warrant, access information about your IP addresses, where you are, subscriber information and things like that,” Avelar said. “People should understand that this is not a decision that just affects accused criminals or even convicted criminals, it is an issue that affects all of us.”

 

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