In the summer of 2018, the U.S. Supreme Court issued its opinion in Carpenter v. U.S., holding that “the fact that [your digital] information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.” Put simply, the Court recognized that digital data being passed through and held by a third party does not diminish our expectation of privacy.
This ruling, however, pertained only to cell phone location information—and as a U.S. Supreme Court ruling, it only sets the floor below which law enforcement may not descend. So we drafted legislation that would apply the principles of this ruling to all digital data, not just our cell phone location information.
This first-in-the-nation bill closed the notorious “third party doctrine” loophole whereby the U.S. Supreme Court had long allowed law enforcement to obtain people’s digital data without a warrant if that data was possessed by someone else (e.g. a cell phone company, cloud computing company, etc.)
It is essentially impossible to operate in a digital environment without sending sensitive data through a third party relay or service. We store our information in the “cloud” all the time. This law makes clear that we maintain a privacy interest in our data being held by a third party. Now we help other states pass laws like this to safeguard the privacy of more American citizens.
