State v. Mixton
State v. Mixton
Opinion of the Court
¶1 William Mixton appeals his convictions for twenty counts of sexual exploitation of a minor under fifteen years of age, arguing police violated his federal and state constitutional rights by obtaining, without a warrant, information from two service providers identifying him as the sender of certain incriminating *834internet messages. He contends the trial court erred in failing to suppress evidence obtained as a result of that warrantless acquisition of information. We conclude that, although the information was obtained in violation of article II, § 8 of the Arizona Constitution, the good-faith exception to the exclusionary rule applies. Accordingly, we affirm Mixton's convictions and sentences.
Factual and Procedural Background
¶2 In March 2016, an undercover detective investigating child exploitation placed an ad on a popular internet advertising forum targeting offenders interested in child pornography and incest, inviting those interested to contact him to join a group chat on a messaging application known for minimal verification of its users' identities. Several people responded to the ad, including one who provided his messaging application screen name "tabooin520" and asked to be added to the group chat. In the days after the detective added this user to the group, the user posted several images and videos depicting child pornography. When the detective sent a person-to-person message to the user thanking him for the pictures, the user responded by sending the detective additional images of child pornography in personal messages.
¶3 At the detective's request, federal agents participating in the investigation served a federal administrative subpoena on the messaging application provider to obtain the user's IP address.
¶4 Mixton lived in a room at that address. During execution of the search warrant, police seized from Mixton's room a cell phone, an external hard drive, a laptop computer, and a desktop computer, each of which contained numerous images and videos containing child pornography. In some of the folders containing these images and videos, police also found images of Mixton, and images the detective had sent to the user via the messaging application.
¶5 Based on images found on the devices in Mixton's room, a grand jury indicted Mixton on charges including twenty counts of sexual exploitation of a minor under fifteen years of age. The trial court severed counts for other offenses, and after a four-day trial for sexual exploitation, a jury convicted Mixton on all twenty counts. For each count, the court imposed a seventeen-year sentence, all to be served consecutively. We have jurisdiction over Mixton's appeal pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
Motion to Suppress
¶6 Before trial, Mixton moved to suppress both the subscriber information obtained via the administrative subpoenas and all evidence collected as a result of that information including the evidence obtained during the search of his home. He argued that both the Fourth Amendment and article II, § 8 of the Arizona Constitution protected his reasonable expectation of privacy in the subscriber information, prohibiting law enforcement from obtaining that information without a warrant or other court order. After brief oral argument, the trial court denied the motion, ruling that Mixton had no recognized privacy interest in the subscriber information.
*835¶7 On appeal, Mixton reasserts his contention that both the Fourth Amendment and article II, § 8 protect the identifying information he transmitted to the service providers. We review de novo constitutional issues raised in a motion to suppress, considering only the evidence presented at the suppression hearing and viewing that evidence in the light most favorable to upholding the trial court's ruling. State v. Blakley ,
¶8 As a preliminary matter, Mixton urges us to address the issue under article II, § 8 before we address it under the Fourth Amendment in order to "honor[ ] the intent of the [state constitution's] framers to provide an independent and primary organic law, and ... ensure[ ] that the rights of Arizonans will not erode even when federal constitutional rights do." Clint Bolick, Vindicating the Arizona Constitution's Promise of Freedom ,
¶9 For this reason, and because Mixton has also challenged his convictions under the Fourth Amendment, we analyze the issues here first under the Fourth Amendment. In doing so we follow the lead of our supreme court, which has taken this approach in deciding article II, § 8 challenges. See, e.g. , Hernandez ,
Fourth Amendment
¶10 The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." "A 'search' under the Fourth Amendment occurs 'when an expectation of privacy that society is prepared to consider reasonable is infringed.' "
*836State v. Welch ,
¶11 In general, the Fourth Amendment does not protect information that a person reveals to a third party who then reveals it to the state, "even if the information is revealed [to the third party] on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." United States v. Miller ,
¶12 Mixton nonetheless contends that he had a reasonable expectation of privacy in his identity because his conduct shows a calculated effort to maintain anonymity: He used a messaging application known for collecting little information from its users and communicated in that application using a pseudonym. But while a person must have a subjective expectation of privacy in order to invoke Fourth Amendment protection, it must also be "one that society is prepared to recognize as 'reasonable' " for the Fourth Amendment to apply. Smith ,
¶13 Because Mixton had no federally recognized privacy interest in his subscriber information or IP address, law enforcement did not need a warrant under the Fourth Amendment to obtain that information from Mixton's service providers. The trial court did not err in denying Mixton's Fourth Amendment claim.
Article II, § 8 of the Arizona Constitution
¶14 Article II, § 8 of the Arizona Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Although article II, § 8 "is of the same general effect and purpose as the Fourth Amendment to the Constitution of the United States," "[w]e have the right [to interpret] our own constitutional provisions as we think logical and proper, notwithstanding their analogy to the Federal Constitution and the federal decisions based on that Constitution." Turley v. State ,
¶15 While Arizona's appellate courts have never extended article II, § 8 beyond the Fourth Amendment outside the context of the home, see Peltz ,
¶16 No published opinions address the third-party doctrine under Arizona's Constitution.
¶17 Mixton argues that because article II, § 8 explicitly grants protection to "private affairs" in addition to homes, its protection of private affairs must extend beyond the protections offered by the Fourth Amendment, as it does for homes. He urges us to follow Justice Bolick's view that article II, § 8 's protection of "private affairs" must differ from the protection afforded by the Fourth Amendment because the language is different. See Hernandez ,
¶18 To determine whether a private affair has been disturbed, Mixton contends that we should focus on "the nature of the government's actions" rather than applying a reasonable-expectation-of-privacy test akin to that in Fourth Amendment jurisprudence. See State v. Campbell ,
¶19 Mixton next argues that internet users have a reasonable expectation of privacy in their identity when communicating using a pseudonym on the internet. Noting growing public concern about government's ability to collect information from technologies such as the internet that are an indispensable part of modern life, he urges us to join "[a] growing number of states [that] have declined to import the third-party doctrine into their state constitutional search-and-seizure provisions." Zanders v. State ,
¶20 As mentioned above in our discussion of the Fourth Amendment, the federal third-party doctrine generally holds that a person has no reasonable expectation of privacy in information revealed to a third party, even "on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." Miller ,
¶21 In Smith , the Court concluded that the suspect had no reasonable expectation of privacy in the phone numbers he dialed.
[W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies "for the purposes of checking billing operations, detecting fraud and preventing violations of law." ... Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.
When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and "exposed" that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.
¶22 Federal courts have uniformly applied the third-party doctrine in Smith to information held by ISPs such as the subscriber information of a particular user, logs showing the user's internet activity through the IP
*840addresses of websites a user has visited, and the email addresses of those who send and receive emails to and from the user. See, e.g. , Caira ,
[E]-mail and Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information. Like telephone numbers, which provide instructions to the "switching equipment that processed those numbers," e-mail to/from addresses and IP addresses are not merely passively conveyed through third party equipment, but rather are voluntarily turned over in order to direct the third party's servers.
Second, e-mail to/from addresses and IP addresses constitute addressing information and do not necessarily reveal any more about the underlying contents of communication than do phone numbers. When the government obtains the to/from addresses of a person's emails or the IP addresses of websites visited, it does not find out the contents of the messages or know the particular pages on the websites the person viewed. At best, the government may make educated guesses about what was said in the messages or viewed on the websites based on its knowledge of the e-mail to/from addresses and IP addresses-but this is no different from speculation about the contents of a phone conversation on the basis of the identity of the person or entity that was dialed.
Forrester ,
¶23 The concerns Mixton raises regarding the third-party doctrine are not new: Justices Stewart and Marshall, both joined by Justice Brennan, raised the same general concerns in dissents in Smith .
¶24 Many legal scholars have lodged similar criticisms and concerns. For example, one remarked:
Privacy of information normally means the selective disclosure of personal information rather than total secrecy. ... A bank customer may not care that the employees of the bank know a lot about his financial affairs, but it does not follow that he is indifferent to having those affairs broadcast to the world or disclosed to the government.
Richard Posner, The Economics of Justice 342 (1981); see also Wayne R. LaFave, 1 Search & Seizure § 2.7(c) (5th ed. 2018) ("The result reached in Miller is dead wrong, and the Court's woefully inadequate reasoning does great violence to the theory of Fourth Amendment protection the Court had developed in Katz ."); Avidan Y. Cover, Corporate Avatars and the Erosion of the Populist Fourth Amendment ,
¶25 Many states have refused to adopt the third-party doctrine established in Miller and Smith under their state constitutions, concluding that people do have a reasonable expectation of privacy in information they must furnish to companies providing banking, phone, and internet service in order to use those services. See, e.g. , People v. Chapman ,
¶26 For example, in State v. Reid , the New Jersey Supreme Court affirmed the trial court's suppression of an internet user's subscriber information, holding that under that state constitution's search-and-seizure provision, internet users have a reasonable expectation of privacy in their subscriber information, just as they do in their bank records and phone calls.
*842address usually only identifies the ISP to which it is assigned, and only that ISP can match their customer's identity to an IP address. Id. at 29. When the government obtains the user's identity through his or her subscriber information, the government can learn intimate details of the subscriber's life, including the "stores at which a person shops, the political organizations a person finds interesting, a person's ... fantasies, her health concerns, and so on." Id. at 33 (alteration in original) (quoting Daniel Solove, Reconstructing Electronic Surveillance Law ,
¶27 For similar reasons, we conclude that internet users generally have a reasonable expectation of privacy in their subscriber information.
¶28 The state rests its argument in favor of the third-party doctrine on the rationales from Smith : It argues the information at issue here was "non-content" information that Mixton voluntarily submitted to the third-party service providers. But information that has been deemed as "non-content," such as a person's bank records, who a person calls or emails, what websites a person visits, or, as here, the identity behind anonymous communications, is part and parcel of a person's private affairs; access to it affords the government significant insight into a person's private activities and beliefs. Warrantless government collection of this information from an internet service provider or similar source thus constitutes a significant and unwarranted intrusion into a person's private affairs-an intrusion our constitution unambiguously prohibits. And we are not persuaded that a person gives up any reasonable expectation of privacy in this information because he or she "voluntarily" reveals his or her identity to an ISP to get service. The user provides the information for the limited purpose of obtaining service. It is entirely reasonable for the user to expect the provider not to exceed that purpose by revealing the user's identity to authorities in a way that connects it to his or her activities on the internet. Therefore, when the government compels the provider to release the internet user's identity in that way, and without a warrant, it invades the user's reasonable expectation of privacy.
¶29 We are especially troubled that the third-party doctrine grants the government unfettered ability to learn the identity behind anonymous speech, even without any showing or even suspicion of unlawful activity. An author's decision to remain anonymous, whether "motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible, *843" "is an aspect of the freedom of speech protected by the First Amendment." McIntyre v. Ohio Elections Comm'n ,
¶30 Even if the government obtains nothing more without a warrant than basic identifying information connected to specific internet activity, other cherished rights are endangered. The right of free association, for example, is hollow when the government can identify an association's members through subscriber information matched with particular internet activity. The importance of privacy in one's associations is illustrated by NAACP v. Alabama , in which the Court ruled that the state could not compel the NAACP to produce the names and addresses of its members even with a court order, ruling that the compelled disclosure violated the members' freedom of association.
It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute ... effective ... restraint on freedom of association. ... This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. ...
We think that the production order, in the respects here drawn in question, must be regarded as entailing the likelihood of a substantial restraint upon the exercise by [the NAACP's] members of their right to freedom of association. [The NAACP] has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of [the NAACP's] Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.
¶31 In his partial dissent, Judge Espinosa allows that suppression of evidence of such First Amendment-protected activity obtained through government investigation of an IP address may be warranted. But were we to adopt his conclusion that, absent some unidentified Herculean effort to maintain anonymity, citizens abandon any claim to privacy in their internet activities, we would be hard-pressed to find a reasoned basis upon which to do so. Moreover, the privacy protections afforded by our constitutions are not limited to the exclusion of evidence in criminal proceedings; rather, they prohibit abusive governmental intrusions in the first place.
¶32 As to the concern that our reasoning would unduly impair legitimate law enforcement investigation of crimes like Mixton's, as noted in Judge Eckerstrom's dissent, police could have easily obtained a search warrant in this case.
¶33 We are mindful our supreme court has expressed a reluctance to depart from Fourth Amendment precedent in analyzing suppression issues under article II, § 8. See Bolt ,
Good-Faith Exception
¶34 The purpose of the exclusionary rule is to deter unlawful police conduct. See Illinois v. Krull ,
¶35 Although the identifying information in this case was obtained by an administrative subpoena rather than a search warrant, we agree with the state's contention that the good-faith exception set forth in United States v. Leon ,
¶36 Other factors support our conclusion that the detective's reliance on the warrant issued by a neutral magistrate was objectively reasonable. First, the detective was aware federal agents obtained the identifying information using subpoena authority recognized by federal law. Second, every federal circuit court that has considered the issue has concluded, based upon United States Supreme Court precedent, that there is no expectation of privacy in one's identifying information given to an internet service provider.
¶37 While no binding appellate precedent specifically authorized the warrantless search here under article II, § 8, a significant body of appellate law, some of it binding, supported the practice as a reasonable search. In the circumstances here, it was objectively reasonable for police to rely on that precedent. See State v. Weakland ,
¶38 Finally, Arizona's statutory exceptions to the exclusionary rule weigh in favor of a finding of good faith. See A.R.S § 13-3925(B) (in suppression proceeding, "the proponent of the evidence may urge that the peace officer's conduct was taken in a reasonable, good faith belief that the conduct was proper" and the evidence should be admitted), (C) ("The trial court shall not suppress evidence that is otherwise admissible in a criminal proceeding if the court determines that the evidence was seized by a peace officer as a result of a good faith mistake or technical violation.").
Disposition
¶39 Although the evidence used to convict Mixton was obtained in violation of his right to be free from government interference in his private affairs under article II, § 8 of the Arizona Constitution, the good-faith exception to the exclusionary rule applies. We therefore affirm his convictions and sentences.
ECKERSTROM, Judge, concurring in part, dissenting in part:
¶40 The majority opinion comprehensively explains why article II, § 8 of the Arizona Constitution requires the state to secure a warrant under the circumstances here. That opinion observes correctly that a person's actions on the internet may expose "intimate details of the subscriber's life," over which a person would have a reasonable, societally recognized expectation of privacy. The opinion aptly identifies the analytical limitations of the third-party doctrine in describing the boundaries of reasonable expectations of privacy in this contemporary context. Were we to find no violation of article II, § 8 under these facts, we would render the specific guarantee of the Arizona Constitution-that "[n]o person shall be disturbed in his private affairs ... without authority of law"-an empty promise. I join fully in that section of the opinion. I write separately because I would hold that the Fourth Amendment to the United States Constitution provides the same protection.
¶41 As the majority observes, lower federal courts have consistently held that persons have no expectation of privacy in identifying information voluntarily conveyed to internet service providers. See Weast ,
¶42 In Carpenter, the Court addressed whether the government may, without a warrant, track a person's movements by use of cell-site location information (CSLI).
¶43 That reasoning should be dispositive here. The privacy interest at stake is no less substantial. As the majority opinion explains, our actions on the internet expose our worries, fantasies, and political views at least as comprehensively as the sequence of our physical locations. Internet access has likewise become an integral part of participation in contemporary culture: it is a place we shop, converse with friends and romantic partners, seek information about medical conditions, and debate the issues of the day. And, as with cell-phone use, one cannot secure such access without exposing some private information to a vendor. See Carpenter , 138 S. Ct. at 2220 (questioning whether persons voluntarily "assume[ ] the risk" of exposing private actions under such circumstances (alteration in Carpenter ) (quoting Smith ,
¶44 In fact, our expectation of privacy in internet use is arguably greater than any similar expectation we hold for our physical movements in public. A visit to an internet site is presumptively anonymous unless we choose to make it otherwise;
¶45 For these reasons, I can identify no principled basis to distinguish the instant case from the Court's holding in Carpenter . The United States Supreme Court's precedents are binding on this court as to federal constitutional matters. I would therefore follow Carpenter and hold that the Fourth Amendment required the state to secure a warrant to acquire Mixton's identifying information from his internet provider.
¶46 As Justice Roberts emphasized, the Court's application of the Fourth Amendment to evolving technologies involves no *847novel guiding principles. To the contrary, "it is informed by historical understandings" of "the privacies of life" in the founding era. Carpenter , 138 S. Ct. at 2214. As "technology has enhanced the Government's capacity to encroach upon areas normally guarded from inquisitive eyes," the Court has sought to protect those same privacies. Id.
¶47 Nothing about our opinion-which the majority bases exclusively on our state constitution and I would base on the Fourth Amendment as well-should prevent our law enforcement agencies from enforcing the rule of law. Indeed, as new technologies become primary conduits of human behavior, our police have no choice but to effectively conduct law enforcement activities in those realms. We merely hold here that our officers need appropriate legal cause, confirmed by a neutral magistrate, to invade traditional privacies that persons now exercise in new domains.
"An IP address is a number assigned to each device that is connected to the Internet. Although most devices do not have their own, permanent ('static') addresses, in general an IP address for a device connected to the Internet is unique in the sense that no two devices have the same IP address at the same time." United States v. Vosburgh ,
The trial court ruled that the information obtained was not protected under the Fourth Amendment but did not separately address Mixton's claim under article II, § 8. Given that the court referred to article II, § 8, we assume it concluded that article II, § 8 's protections coextend with the Fourth Amendment under the facts of this case. Cf. State v. Bolt ,
Because the court in Carpenter expressly limited its holding to cell phone location tracking, 138 S. Ct. at 2220 (decision is a "narrow one"), and affirmed the continuing viability of Miller and Smith , id. , we decline Judge Eckerstrom's invitation to apply it to the facts here.
In State v. Welch ,
Even though article II, § 8 derives from identical language in article I, § 7 of the Washington Constitution, we have not adopted Washington's interpretations of that provision. See Juarez ,
Justices Brennan and Marshall also dissented in Miller .
Of course, Smith was decided long before the widespread use of mobile phone technology.
The record in this case is devoid of evidence of the terms of any contract between the ISP and Mixton or any privacy policy the provider may have disclosed to him. We therefore have no occasion to consider the impact, if any, such terms may have on the reasonableness of a particular subscriber's expectation of privacy in a given case.
Judge Espinosa posits that there can be no expectation of privacy in circumstances such as these because of the ease with which one's identity can be ascertained from an IP address. But if such identification is so easy, why did police need to resort to subpoenas to identify Mixton? The record contains no evidence that he could be identified other than through his ISP.
Nor are we persuaded the risk of ISP security breaches renders an expectation of privacy from government intrusion any less reasonable than do the prospects of burglary in the context of the home.
As noted by the state, four situations preclude the application of the good-faith exception under Leon : (1) when a magistrate is misled by information the affiant knew was false or would have known was false but for reckless disregard for the truth; (2) when the magistrate wholly abandons his or her judicial role; (3) when the warrant affidavit is so lacking in indicia of probable cause to render belief in its existence entirely unreasonable; and (4) when a warrant is so facially deficient that executing officers cannot reasonably presume it to be valid.
The warrant in this case was issued before the Supreme Court decided Carpenter . And in any event, its narrow holding does not sufficiently call into question the continuing vitality of the lower federal court cases discussed above so as to render reliance on them unreasonable. Carpenter , 138 S. Ct. at 2220.
As my dissenting colleague correctly observes, many people choose to use the internet for public activities, such as social media, wherein they consciously relinquish any expectation of privacy. But, as Judge Posner has explained, an expectation of privacy is not an expectation of total secrecy. Posner, supra ¶ 24, at 342. Rather, it is an expectation that a person has the power to selectively determine who may have access to a presumptively private domain. We do not waive our right of privacy in our homes simply because we occasionally choose to invite relatives, friends, or housekeepers to enter it. Similarly, we do not waive our right of privacy in all our internet activities simply because we choose to make some part of it public.
I concur that the state's violation of Mixton's rights occurred in good faith. The Court did not issue Carpenter until June 2018, long after the search in question occurred. As the majority opinion correctly observes, all previous federal case law had applied the third-party doctrine to similar searches, finding no constitutional violation. Furthermore, until our opinion today, outside of the context of home searches, no previous Arizona court had held article II, § 8 of the Arizona Constitution to provide greater privacy rights than those enforced by the United States Constitution. See State v. Hernandez ,
The warrant requirement would have posed no impediment to the investigation of the instant case. Mixton's e-mail correspondence with the undercover officer, together with the attachment of child pornography to that correspondence, provided ample basis to secure a warrant for Mixton's personal identifying information.
Concurring in Part
¶48 I fully agree that no Fourth Amendment violation occurred on the facts of this case, and even if there had been, such would have been cured under both the federal and Arizona good-faith doctrines. I write separately, however, because I respectfully disagree with the majority's novel discovery of constitutional protection for internet subscriber information under the Arizona Constitution, particularly in this day and age of constant personal internet connection and dependency, where little, absent extraordinary measures, can confidently be deemed private and shielded.
¶49 In concluding that utilizing otherwise properly obtained third-party ISP subscriber information through a federally authorized subpoena now violates a societal expectation of privacy under article II, § 8 of the Arizona Constitution, my colleagues assert that "internet users generally enjoy-and expect-anonymity in their internet use," citing a 2008 New Jersey case, Reid ,
¶50 While specific subscriber IP addresses are primarily in the possession of ISPs,
Welch has provided no authority for the proposition that internet usage conducted through identifying markers-such as the user's unique IP address-preserve one's expectation of privacy. As Detective Barry testified, "every device that connects to the Internet is assigned an Internet protocol address" that internet providers-such as Cox Communications or Comcast-assign to their customers in order to identify them and verify their status as paying customers. Welch did not argue-either below or on appeal-that he had any expectation of confidentiality from such a provider, and we conclude that any alleged expectation of privacy would be unreasonable.
¶51 In support of their holding, my colleagues refer to a parade of potential horribles that could flow from the disclosure of an internet user's identity, including where they shop, organizations they belong to, medical information, and other details of a person's life. Indeed, such governmental prying might well warrant constitutional protection and suppression of any such evidence gained through investigating an IP address.
¶52 It is notable that, despite my colleagues' suggestion of a growing trend, today's decision joins what appears to be only one state court in the entire country that has found ISP subscriber information protected under its state constitution. That court did so, however, specifically relying on twenty-five years of expansion of New Jersey privacy rights, rather than out of the blue, as undertaken by the majority here. See Reid ,
¶53 But there is another, equally important reason I refrain from joining the majority's novel interpretation of the Arizona Constitution. It is entirely unnecessary for the resolution of this appeal. As our supreme court has observed, "[W]e should resolve cases on non-constitutional grounds in all cases where it is possible and prudent to do so." State v. Korzuch ,
*850¶54 In sum, the third-party identifying information at issue in this appeal is far too widely accessible to support a reasonable expectation of privacy. And even were it indeed time to expand the reach of article II, § 8 in this technological direction, the case at hand is not the one for it. Accordingly, I respectfully dissent from the majority's constitutional analysis in paragraphs 14-33, but join in the other sections of the opinion and its disposition of Mixton's appeal.
The popularity of the Internet of Things (IoT) is growing by leaps and bounds, with all manner of household devices and appliances utilizing the same type of Internet Protocol (IP) addresses and subscriber information as involved in this case. See Swaroop Poudel, Note, Internet of Things: Underlying Technologies, Interoperability, and Threats to Privacy and Security ,
Contrary to Judge Eckerstrom's concerns, it is important to keep in mind that only basic identifying information is at issue here. Police obtained neither Mixton's "public physical movements" as in Carpenter , nor his "internet visit[s]," but only the source and "street address" of the illicit material after obtaining the poster's IP address from a single internet site. Access to any of Mixton's "public activities" or "private domain," at least on this record, only came about through the execution of a duly issued search warrant.
ISPs, however, like countless other repositories of individual consumer data, suffer breaches that result in the wholesale theft of private and confidential information, unlike the typical home burglary, with resulting dissemination (or sale) of that information. See, e.g. , Robert Hackett, Verizon's Data Breach Fighter Gets Hit With, Well, a Data Breach , Fortune (Mar. 24, 2016), http://fortune.com/2016/03/24/verizon-enterprise-data-breach/ (contact information of some 1.5 million Verizon customers stolen in data breach); Paige Leskin, The 21 Scariest Data Breaches of 2018 , Bus. Insider (Dec. 30, 2018), https://www.businessinsider.com/data-hacks-breaches-biggest-of-2018-2018-12; David McCandless et al., World's Biggest Data Breaches & Hacks , Information is Beautiful, https://www.informationisbeautiful.net/visualizations/worlds-biggest-data-breaches-hacks/ (last updated Apr. 1, 2019).
Saul Hansell, Google Says I.P. Addresses Aren't Personal , N.Y. Times: Bits (Feb. 22, 2008), https://bits.blogs.nytimes.com/2008/02/22/google-says-ip-addresses-arent-personal/ (IP addresses alone not "personal information," but once user registers for any online service, IP address can be associated with user's identity and everything else the user does online).
To fortify its conclusion, the majority miscasts my position as requiring citizens to "abandon any claim to privacy in their internet activities" to avoid "abusive governmental intrusions." But, as already noted, that dire specter invokes a far different factual scenario and issue, well beyond what occurred in this case. See Velasco v. Mallory ,
My colleagues posit that "police could have easily obtained a search warrant in this case." But that sidesteps the question of whether law enforcement should have to resort to such formal and burdensome means in the first place, particularly during the preliminary stages of an investigation. See Fernandez v. California ,
Reference
- Full Case Name
- The STATE of Arizona v. William MIXTON
- Cited By
- 4 cases
- Status
- Published