The Electronic Frontier Foundation (EFF) is warning the public about the potential privacy implications of a recent decision from the Arizona Supreme Court. In a 4-3 ruling in State v. Mixton, the court decided that someone’s internet history is not protected under the state’s or the country’s current privacy law, and that law enforcement agencies do not need to obtain a search warrant before acquiring a record of that activity.
The ruling is based on a legal principle known as the third-party doctrine, which concerns situations in which an individual provides personal information to a third party in exchange for some kind of good or service. Since that information is disclosed voluntarily, the third-party doctrine holds that that individual should not necessarily expect that information to remain private, at least when it comes to a criminal investigation.
According to the Supreme Court’s ruling, the third-party doctrine applies to internet activity because people need a service provider to access the internet. As a result, any online activity is information that has been voluntarily given to that third party.
However, the EFF argues that digital technology complicates the third-party doctrine, since it is functionally impossible to use the internet or navigate the modern world without giving some information to a third party. With that in mind, the third-party doctrine would completely erase any right to privacy if interpreted in the most rigid possible terms.
“We entrust private information to third parties every day: every time we use a credit card, provide our Social Security number, use a security card reader, mail a saliva sample to a genetics lab, make a bank deposit or withdrawal, use a password to enter a website, or even send an email,” wrote the dissenting judges in Mixton. “The notion that anything one must share for purposes of voluntary transactions is thereby subject to government inspection would eviscerate any meaningful notion of privacy.”
The EFF noted that the federal Supreme Court has rejected the third-party doctrine in Carpenter v. U.S. and other cases that concern digital technology. The organization believes that the Fourth Amendment of the U.S. constitution should give people a reasonable expectation of privacy when using the internet to conduct personal business.
That expectation of privacy is a key component of the EFF’s case in favor of the private use of facial recognition. The organization has previously spoken out against the public use of the technology, and has also argued that better protections need to be put in place to guarantee people’s right to privacy in an environment with augmented reality.