In a move that is being touted as a win in the world of digital privacy, Utah became the first state in the country to ban law enforcement from conducting warrantless digital data searches. Electronic data – including images, audio, and written information – can only be searched by law enforcement if the court issues an official warrant based on probable cause.
The new restrictions were part of Utah’s Electronic Information or Data Privacy Act (HB 57), according to a report by Forbes.
As stated in the report, “the act ensures that search engines, email providers, social media, cloud storage, and any other third-party ‘electronic communications service’ or ‘remote computing service’ are fully protected under the Fourth Amendment” as well as its equivalent Utah’s Constitution.
Other provisions are also included in HB 57, including that agencies have to notify digital data owners within 14 days of a search being conducted. Illegally obtained electronic data also cannot be used as evidence in a court of law.
However, law enforcement did receive some concessions in HB 57. Officers can access location-tracking data or subscriber information without an official warrant when there’s an “imminent risk” of death, sexual abuse, livestreamed sexual exploitation, human trafficking, kidnapping, or serious physical harm.
There were five substitute versions of HB 57 as it was being developed. Last month, the final version was approved without a single dissenting vote.
HB 57 is scheduled to take effect mid next month.
Digital privacy has become a hot-button issue for advocates of the Fourth Amendment. With “third-party doctrine,” 49 states and the federal government can access a surprising amount of electronic information without having to first secure a warrant by working with third parties.
Third-party doctrine involves the lack of a “legitimate expectation of privacy” as the data is “voluntarily conveyed” to the third parties. The Supreme Court determined in the late 1970s that warrantless searches of dialed phone number records and bank records were permitted for those reasons under the Fourth Amendment.
Last year, third-party doctrine was narrowed to exclude “cell-site location information” (CSLI), as it was deemed as a search under the Fourth Amendment by the Supreme Court in Carpenter v. the United States.
“When the Government tracks the location of a cell phone it achieves near perfect surveillance,” said Chief Justice John Roberts, “as if it had attached an ankle monitor to the phone’s user.”