Imagine it’s Sunday night and you’re relaxing with a glass of wine before the upcoming workweek. You sit down at your computer and email your grandparents pictures of a beautiful hike you took over the weekend. You message your friends a funny meme on Instagram. And you finally call your mom back to check-in on how she’s doing. It’s hard to believe, but the police can access that email, Instagram message, and phone record—without a warrant.
In an age when most of our data is stored digitally, many Americans are unaware that law enforcement has the power to do this. In fact, police can adopt new surveillance technologies quickly, even if those tactics undermine privacy rights and disregard the public’s oversight or consent.
Americans should have awareness and peace of mind about who is doing what with their digital data. The good news is that states can advance policies that make that possible for Americans. State think tanks can play a pivotal role in helping states craft solutions that protect the data privacy of the people of their state while also giving police the tools they need to capture criminals. To get started, states need to look no further than Utah, where the Libertas Institute is championing solutions that are relevant and effective for today’s digital environment.
The coronavirus pandemic left many states scrambling for solutions on how to control the spread of the disease. In Utah, lawmakers passed several policies without taking people’s digital privacy into consideration. The state released an emergency alert broadcasting system that asked people to fill out a COVID-19 form when entering the state. The form asks where you’ve been, if you’re sick, and if you have any symptoms. Many Utahans were concerned that the government would be tracking their location, and some had questions about how the data would be used. Utah also developed a contact tracing app. People were worried they would be forced to use the app and give up their location and health information.
Libertas stepped in and educated Utah’s leaders and the public on how these policies infringe on privacy rights. Libertas empowered policymakers to address the issue, and they took note. Utah eliminated the broadcast system and made the tracing app voluntary. Utahans could now rest easy knowing that new policies to fight the coronavirus respected their Fourth Amendment rights.
Libertas also created model legislation for lawmakers to proactively protect the privacy rights of Utahans, rather than continue to react to policies after they’ve been put in place. Libertas proposed the Privacy Protection Act, legislation that would require law enforcement to get approval before using new technologies that could lead to unauthorized surveillance. Libertas is promoting this proposal in next year’s legislative session and is planning on working with other state think tanks to advance the legislation in their states. The Privacy Protection Act is a good starting point for state think tanks that have yet to work on data privacy issues.
In 2014, a news report revealed Utah police were using a device called the stingray to intercept and store people’s location information, texts, calls, and emails—all without a warrant. The report caught the eye of Libertas, raising their concerns that law enforcement was sidestepping the Fourth Amendment. Libertas worked with the Utah Legislature to pass a bill that requires law enforcement to get a search warrant before obtaining someone’s location information or stored data.
A few years later, Libertas started working on what’s called the “third party doctrine”—a Supreme Court precedent that states: “A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” In other words, because you gave it to someone else, you must not want to keep it as private. In today’s digital age, however, almost all of us store our information—every email, test, or Instagram message—on third party platforms. Libertas knew this was a misguided policy that affects every single American. Government should have to get permission before they access our personal information. It shouldn’t be allowed to access that information whenever it wants, without first going through the legal steps to do so.
Soon after their campaign started, the Supreme Court ruled in Carpenter v. United States that police need a search warrant before accessing an individual’s cell phone location records. This ruling gave their campaign momentum. Finally, the court was starting to walk back on the third party doctrine. Although it only applied to cell phone records, it was the first time the US Supreme Court has reconsidered its position on this third party doctrine since 1979, when the court set the precedent that eliminated any expectation of privacy in the digital age.
In addition to the Carpenter case, another opinion from the Supreme Court ignited Libertas’ efforts: Supreme Court Justice Samuel Alito noted: “It would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.”
Libertas President Connor Boyack sees Justice Alito’s statement as a call to action for states, and specifically state think tanks, to take up privacy protection issues. Boyack added: “You have a Supreme Court Justice saying, ‘Why are you looking to us?’ Technology is changing way too fast. State legislatures are in a better position than we are to respond.”
Thanks to Libertas two-year effort, the Utah Legislature responded in 2019. Lawmakers unanimously passed the nation’s first comprehensive data privacy law that requires police to obtain a warrant before obtaining a person’s digital data. The people of Utah no longer have to worry about the government getting their hands on their private data without good reason to do so.
Technology is constantly changing, and government is often quick to adopt it without considering the risks to Americans’ civil liberties. State think tanks care deeply about civil liberties because they are so essential to Americans’ quality of life. Because they have a unique ability and passion to infuse civil liberties into policy reform ideas, state think tanks can be valuable partners to state lawmakers looking for legislative solutions to preserve and strengthen Americans’ Fourth Amendment rights.
“Our Legislature has not had the natural inclination to do this on its own,” observed Boyack. “It’s been our organization pushing this issue. This demonstrates the impact a think tank can have. If you do the work and build a coalition the right way, you can succeed. Utah need not be an outlier. We hope other states will follow.”