December 16, 2019
Libertas Institute leads the way in digital privacy
The government can no longer search the digital communications of people in Utah without a warrant—thanks to the Libertas Institute. In March 2019, the Utah Legislature unanimously passed a law that requires law enforcement to obtain a warrant for a person’s data, whether that data is on a person’s own device or hosted by a third party. You might be wondering—that was legal in the first place? Yes, according to the US Supreme Court.
For decades, the court has held that Americans don’t have an expectation of privacy for information they surrender to a third party. This means that law enforcement can access private information held by “third parties” without a warrant. In this digital age, however, all our information is stored by third parties. Think about it—our texts, emails, Snapchats, Instagram DMs, G-chats, and more—are all routed through and stored by third parties.
“It’s effectively impossible to interact digitally with others unless you rely on third party intermediaries,” said Libertas. “Doing so shouldn’t give the government an open book to access our sensitive information.”
Seeking to change the law and strengthen the privacy rights of millions of Utahns, Libertas spearheaded a campaign to extend Fourth Amendment protections to third-party digital data. Libertas wrote a policy brief on the issue, “Protecting Your Digital Data from Warrantless Searches,” that outlined the history of the US Constitution’s Fourth Amendment, and specifically the provision on “the right of the people to be secure in their persons, houses, papers, and effects.” The brief also explored how changes in technology have changed the interpretation of the Fourth Amendment, and it offered proposals to ensure the protection of digital data.
To put this issue in the public spotlight, especially for policymakers, Connor Boyack, president of Libertas, penned an op-ed in the Deseret News that encouraged state lawmakers to extend privacy rights to new technologies. Libertas also produced a video on the importance of the Fourth Amendment, urging lawmakers to put an end to warrantless searches of people’s private information. After a two-year effort, Utah became the first state in the country to implement a law that includes third-party data protection, becoming a state leader in digital privacy.
Several media outlets covered the passage of the law, including the editorial board of the Pittsburgh Post-Gazette, which noted: “Other state legislatures throughout the country should follow Utah’s example by passing a law that puts an end to third-party doctrine and tries to better protect the privacy of their constituents.”
This win is an important example of how states are best positioned to develop policy solutions that are relevant and responsive to the lives of everyday Americans. State think tanks like Libertas are on the frontier of policy reforms that are culturally relevant—Washington DC is much slower to adapt to present-day realities and challenges.
Thanks to Libertas, Utahns have digital privacy rights as secured by the Fourth Amendment to the US Constitution. The government can no longer sidestep due process and access this private information without a warrant. And, the government must have probable cause and permission to access private information—even information obtained and stored by third parties.
Libertas’ victory is not only a win for Utah; it sets a standard for other states, giving the rest of the country a model for protecting Americans’ digital privacy. For their success in advancing privacy rights and setting a model for other states, Libertas Institute received State Policy Network’s 2019 Bob Williams Award for Biggest Win.
