The 4th Amendment in a Digital World
My generation has grown up with the assumption that somewhere, at some point, our personal data is going to get hacked. Paradoxically, we’ve also grown up sharing and storing more and more information online.
Even though we know digital platforms aren’t secure, their benefits out-weigh the risks. So, we do what we can to protect ourselves with feeble passwords, and then we shrug our shoulders and say, “at least I don’t have much to hide.”
But what if it didn’t have to be that way? What if our 4th Amendment constitutional right to privacy extended to the digital world – not just in name, but in reality?
In March, Governor Gary Herbert of Utah signed a groundbreaking digital privacy bill into law, thanks in part to the work of our friends at Libertas Institute. It is the first bill in the country to protect the data that individuals’ share with a third party company. The new law requires law enforcement to obtain a warrant to access your personal data that is held by 3rd parties like Google, or Apple. It also requires the state to notify individuals when their information has been accessed after law enforcement receives the warrant.
In the past, law enforcement couldn’t access your hard drive or pull up a photo stored on your phone’s memory card without a warrant. But if that photo was saved in Google Drive or another cloud storage system? Fair game. This is what is known as the Third Party Doctrine. This doctrine came out of Supreme Court cases in the ‘70s that essentially argued that if you willingly shared your information with a third party such as a bank or a phone company, you could no longer expect that information to be private.
The Third Party Doctrine has been applied to the internet as well. We are, after all, choosing to store our photos on cloud platforms.
That argument is increasingly problematic as more and more personal data is created and stored online. Just consider that your phone knows where you are at all times (unless you accidently leave your phone somewhere else), thanks to the GPS data held by Google Maps.
The 4th Amendment says that we have the “right to be secure in [our] persons, houses, papers, and effects, against unreasonable searches and seizures.” When the Founders wrote it, they couldn’t have envisioned the digital world we’re living in today. But it’s not hard to imagine how appalled they would be by a government agency accessing your personal files and data without even telling you.
Which is why, Utah said “enough!”
State Representative Craig Hall (R) introduced the bill. He shared that his goal is to “provide the same protections we have in the physical world and apply those to the electronic world.”
Utah’s new law only deals with government access of private digital data. There is still the question of how companies and organizations handle and share your digital data. But Utah has taken an important first step in protecting its citizens in the digital world – let’s see if other states follow suit.