State of Arizona v. William Mixton

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
WILLIAM MIXTON,
Appellant.
No. CR-19-0276-PR
Filed January 11, 2021
Appeal from the Superior Court in Pima County
The Honorable Sean E. Brearcliffe, Judge
No. CR20162038-001
AFFIRMED
Opinion of the Court of Appeals, Division Two
247 Ariz. 212 (2019)
VACATED
COUNSEL:
Mark Brnovich, Arizona Attorney General, Brunn “Beau” W. Roysden III,
Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals
Section, Linley Wilson (argued), Deputy Solicitor General, Phoenix,
Attorneys for State of Arizona
Joel Feinman, Pima County Public Defender, Abigail Jensen (argued),
David J. Euchner, Deputy Public Defenders, Tucson, Attorneys for William
Mixton
Timothy Sandefur, Scharf-Norton Center for Constitutional Litigation at
the Goldwater Institute, Phoenix, Attorney for Amicus Curiae Goldwater
Institute
Paul V. Avelar, Timothy D. Keller, Keith E. Diggs, Institute for Justice,
Tempe, Attorneys for Amicus Curiae Institute for Justice
Elizabeth Burton Ortiz, Arizona Prosecuting Attorneys’ Advisory Council,
Phoenix, Attorney for Amicus Curiae Arizona Prosecuting Attorneys’
Advisory Council
STATE V. MIXTON
Opinion of the Court
Jared G. Keenan, American Civil Liberties Union Foundation of Arizona,
Phoenix, Attorney for Amici Curiae American Civil Liberties Union of
Arizona, American Civil Liberties Union, and Electronic Frontier
Foundation
JUSTICE LOPEZ authored the opinion of the Court, in which JUSTICES
GOULD, BEENE, and MONTGOMERY joined. JUSTICE BOLICK, joined
by CHIEF JUSTICE BRUTINEL and VICE CHIEF JUSTICE TIMMER,
dissented.
JUSTICE LOPEZ, opinion of the Court:
¶1 We consider whether the Fourth Amendment to the United
States Constitution or article 2, section 8 of the Arizona Constitution
requires law enforcement officials to secure a judicially-authorized search
warrant or order to obtain either (1) a user’s Internet Protocol (“IP”) address
or (2) subscriber information the user voluntarily provides to an Internet
Service Provider (“ISP”) as a condition or attribute of service. We hold that
neither the federal nor the Arizona Constitution requires a search warrant
or court order for such information and that law enforcement officials may
obtain IP addresses and ISP subscriber information with a lawful federal
administrative subpoena.
BACKGROUND
¶2 An ISP is a company that provides individuals with access to
the internet. United States v. Jean, 207 F. Supp. 3d 920, 931 (W.D. Ark. 2016),
aff’d 891 F.3d 712 (8th Cir. 2018). The ISP assigns a string of numbers, called
an IP address, to a customer’s modem to facilitate access to the internet. Id.
at 928. Consequently, a user does not control nor own an IP address. IP
addresses are always attached, “like a ‘return address,’ to every ‘envelope’
of information exchanged back and forth by computers that are actively
communicating with each other over the internet.” Id. at 928–29. When a
computer accesses a website, the IP address tells the website where to
transmit data. See Frederick Lah, Note, Are IP Addresses “Personally
Identifiable Information”?, 4 I/S: J.L. & Pol’y for Info. Soc’y 681, 693 (2008).
Search engines, such as Google, also log IP addresses of users and use these
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Opinion of the Court
logs to improve the quality of search results and advertisements for
visitors. Id. at 693–94.
¶3 An IP address alone does not reveal an internet user’s
identity. Rather, it generally reveals only a user’s approximate geographic
location, such as a neighborhood, and the user’s ISP. Lincoln Spector, Your
IP address: Who can see it and what you can do about it, PCWorld (Mar. 17, 2014,
7:15 AM), https://www.pcworld.com/article/2105405/your-ip-address-
who-can-see-it-and-what-you-can-do-about-it.html. The ISP, however,
maintains records and information, such as the name, address, and
telephone number associated with an IP address, known as “subscriber
information.” See Savanna L. Shuntich & Kenneth A. Vogel, Doe Hunting:
A How-to Guide for Uncovering John Doe Defendants in Anonymous Online
Defamation Suits, Md. B.J. 48, 51 (July/Aug. 2017).
¶4 Here, in 2016, an undercover Tucson Police Department
detective posted an advertisement on an online forum seeking users
interested in child pornography. The detective was contacted by someone
with the username “tabooin520,” who asked to be added to a group chat on
a messaging application called “Kik.” Once added, tabooin520 sent images
and videos of child pornography to the group chat and to the detective.
¶5 Federal agents with Homeland Security Investigations
(“HSI”), at the request of the detective, served a federal administrative
subpoena authorized under federal law on Kik to obtain tabooin520’s IP
address. Kik provided the IP address to the detective. The detective, using
publicly available databases, determined that Cox Communications
(“Cox”) was the ISP for the IP address. HSI agents then served another
federal administrative subpoena on Cox for the subscriber information
associated with the IP address.
¶6 Cox complied with the subpoena, disclosing the subscriber
information—name, street address, and phone number—of William
Mixton. The detective used this information to obtain and execute a search
warrant on Mixton’s residence. Detectives seized a cell phone, an external
hard drive, a laptop, and a desktop computer. A subsequent search of these
devices revealed photos and videos of child pornography, as well as the
messages, photos, and videos that Mixton, under the username
“tabooin520,” sent to the detective.
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Opinion of the Court
¶7 Mixton was indicted on twenty counts of sexual exploitation
of a minor under fifteen years of age. Mixton moved unsuccessfully to
suppress the subscriber information and all evidence seized from his
residence on the grounds that the Fourth Amendment to the United States
Constitution and article 2, section 8 of the Arizona Constitution require a
warrant or court order to obtain his IP address and ISP subscriber
information. A jury convicted Mixton on all counts, and he appealed.
¶8 In a split decision, the court of appeals affirmed Mixton’s
convictions and sentences, holding that although Mixton lacked a
reasonable expectation of privacy under the Fourth Amendment, State v.
Mixton, 247 Ariz. 212, 220 ¶ 13 (App. 2019), the Arizona Constitution
required a search warrant to obtain his ISP subscriber information, id. at 225
¶ 27, and the federal third-party doctrine did not apply to the Arizona
Constitution, id. at 227 ¶ 33. The court concluded that, although the State
obtained Mixton’s ISP subscriber information in violation of the Arizona
Constitution, suppression of the information was unnecessary because the
good-faith exception to the exclusionary rule applied, as no precedent
prohibited the search, controlling law deemed the search reasonable, and
law enforcement reasonably relied on existing precedent. Id. at 228 ¶ 39.
¶9 On review in this Court, the State argues that article 2, section
8 of the Arizona Constitution does not require a search warrant or court
order to obtain IP addresses and ISP subscriber information. Mixton
disagrees and further contends that the Fourth Amendment protects IP
addresses and ISP subscriber information in light of Carpenter v. United
States, 138 S. Ct. 2206 (2018).
¶10 We granted review to consider whether the United States or
Arizona Constitution requires a search warrant or court order to obtain IP
addresses and ISP subscriber information, a recurring issue of statewide
importance. We have jurisdiction under article 6, section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.
DISCUSSION
¶11 Whether the United States or Arizona Constitution requires a
search warrant or court order to obtain an IP address and ISP subscriber
information involves the interpretation of constitutional provisions, a
matter we review de novo. See State v. Hegyi, 242 Ariz. 415, 416 ¶ 7 (2017).
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Opinion of the Court
I.
¶12 We consider first whether, in light of Carpenter, the United
States Constitution requires a search warrant or court order to obtain an IP
address and ISP subscriber information.
A.
¶13 The Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” The Fourth Amendment was designed to protect
individuals against “arbitrary invasions by governmental officials.”
Carpenter, 138 S. Ct. at 2213 (quoting Camara v. San Francisco, 387 U.S. 523,
528 (1967)). Traditionally, the Supreme Court viewed search and seizure
under the Fourth Amendment through a lens of “common-law trespass.”
See United States v. Jones, 565 U.S. 400, 405 (2012). However, the Court has
recognized that the Fourth Amendment protects people, not just places,
when an individual “seeks to preserve something as private” and that
expectation is “one that society is prepared to recognize as reasonable.”
Carpenter, 138 S. Ct. at 2213 (quoting Smith v. Maryland, 442 U.S. 735, 740
(1979)). “A ‘search’ occurs when an expectation of privacy that society is
prepared to consider reasonable is infringed.” United States v. Jacobsen, 466
U.S. 109, 113 (1984).
B.
¶14 Federal appellate courts held uniformly, before Carpenter, that
the Fourth Amendment does not protect IP addresses and ISP subscriber
information because such information falls within the exception created by
the “third-party doctrine.” See, e.g., United States v. Bynum, 604 F.3d 161,
164 (4th Cir. 2010) (noting that every federal court considering this issue has
held that subscriber information provided to an internet provider is not
protected by the Fourth Amendment); United States v. Perrine, 518 F.3d 1196,
1204–05 (10th Cir. 2008) (collecting cases that hold the Fourth Amendment’s
privacy expectation does not apply to IP addresses and ISP subscriber
information); United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008)
(holding that IP addresses and ISP subscriber information are not protected
by the Fourth Amendment). The third-party doctrine is premised on the
concept of privacy. Specifically, the doctrine is an analytical construct used
to differentiate between information a person seeks to preserve as private,
and information that, because he shares it with others, is not treated as
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Opinion of the Court
private. Using this construct, a person has no expectation of privacy in
information he voluntarily discloses to third parties, even if there is an
assumption it will be used only for a limited purpose. Carpenter, 138 S. Ct.
at 2216. And, because it is no longer private, the government may obtain
such information from a third party without triggering the Fourth
Amendment’s protections. Id.
¶15 The third-party doctrine traces its roots to United States v.
Miller, 425 U.S. 435 (1976), and Smith v. Maryland, 442 U.S. 735 (1979). In
Miller, the government subpoenaed a defendant’s bank for records,
including the defendant’s checks, deposit slips, and statements. 425 U.S.
at 437–38. The Supreme Court held that those documents were business
records of the bank; thus, the defendant had no privacy interest in them. Id.
at 440.
¶16 In Smith, the Supreme Court held that a defendant did not
have “a legitimate expectation of privacy regarding the numbers he dialed
on his phone.” 442 U.S. at 742 (internal quotation marks omitted). The
Court emphasized that customers knew they were conveying phone
numbers to the telephone company and that the company could keep
records of those phone calls. Id. It also reasoned that recording the
numbers a customer dials does not convey the contents of the
communication, thus distinguishing Katz v. United States, 389 U.S. 347
(1967), which held that the warrantless monitoring of telephone
conversations from a public telephone booth violated the Fourth
Amendment. Smith, 442 U.S. at 741.
¶17 Thus, “Smith and Miller . . . did not rely solely on the act of
sharing [information]. Instead, they considered ‘the nature of the particular
documents sought’ to determine whether ‘there is a legitimate “expectation
of privacy” concerning their contents.’” Carpenter, 138 S. Ct. at 2219
(quoting Miller, 425 U.S. at 442). The Ninth Circuit has aptly described the
de minimis privacy interests implicated in the non-content information
generated by an IP address:
When the government obtains the to/from addresses of a
person’s e-mails 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
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Opinion of the Court
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. Like IP addresses,
certain phone numbers may strongly indicate the underlying
contents of the communication; for example, the government
would know that a person who dialed the phone number of a
chemicals company or a gun shop was likely seeking
information about chemicals or firearms. Further, when an
individual dials a pre-recorded information or subject-
specific line, such as sports scores, lottery results or phone sex
lines, the phone number may even show that the caller had
access to specific content information. Nonetheless, the Court
in Smith and Katz drew a clear line between unprotected
addressing information and protected content information
that the government did not cross here.
Forrester, 512 F.3d at 510.
¶18 As with bank records and dialed telephone numbers, an
internet user voluntarily provides subscriber information and IP addresses
to third-party ISPs and servers. Subscriber information and IP addresses
also do not reveal the substance or content of the internet user’s
communication any more than the information affixed to the exterior of a
mailed item. See Shuntich & Vogel, supra ¶ 3, at 51 (noting that 18 U.S.C.
§ 2701 et seq. prohibits companies from disclosing “contents of a
communication,” but they may turn over non-content information like IP
addresses, phone numbers, and physical addresses in response to a
subpoena); cf. Forrester, 512 F.3d at 511 (“In a line of cases dating back to the
nineteenth century, the Supreme Court has held that the government
cannot engage in a warrantless search of the contents of sealed mail, but can
observe whatever information people put on the outside of mail, because
that information is voluntarily transmitted to third parties.”).
C.
¶19 In Carpenter, decided nearly 40 years after Smith, officers
accessed cellphone data, commonly known as cell-site location information
(“CSLI”), to reveal a suspect’s movements over the course of 127 days. 138
S. Ct. at 2217. CSLI is generated by a cellphone whenever it receives a text,
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Opinion of the Court
email, call, or when an app seeks to refresh data. Id. at 2220. As a result,
CSLI is generated continuously without a user’s affirmative act. The Court
described CSLI evidence as “detailed, encyclopedic, and effortlessly
compiled,” id. at 2216, and noted that it “tracks nearly exactly the
movements of its owner,” allowing the government to achieve “near perfect
surveillance, as if it had attached an ankle monitor to the phone’s user,”
id. at 2218. Concerned that CSLI could be used to continuously and
effortlessly surveil cell phone users, the Court created a “narrow” exception
to the third-party doctrine, requiring the government to obtain a search
warrant for CSLI. Id. at 2220. The Court emphasized that a “detailed
chronicle of a person’s physical presence compiled every day, every
moment, over several years” implicated privacy concerns far exceeding
those in Smith and Miller. Id.
¶20 Following Carpenter, every federal appellate court addressing
the issue has affirmed that the Fourth Amendment’s warrant requirement
does not reach IP addresses and ISP subscriber information. See, e.g., United
States v. Hood, 920 F.3d 87, 92 (1st Cir. 2019) (holding that IP addresses are
subject to the third-party doctrine and fall outside the scope of Carpenter);
United States v. Contreras, 905 F.3d 853, 857 (5th Cir. 2018) (ruling that, post-
Carpenter, ISP subscriber information “falls comfortably within the scope of
the third-party doctrine”); see also United States v. Wellbeloved-Stone, 777 F.
App’x 605, 607 (4th Cir. 2019) (declining to revisit Bynum’s holding that
subscriber information was not protected by the Fourth Amendment in
light of Carpenter); United States v. VanDyck, 776 F. App’x 495, 496 (9th Cir.
2019) (declining to revisit Forrester’s holding that IP addresses and ISP
subscriber information are not protected by the Fourth Amendment in light
of Carpenter).
¶21 Although this Court is not bound by federal appellate courts’
interpretations of federal constitutional provisions, see State v. Montano, 206
Ariz. 296, 297 ¶ 1 n.1 (2003), we may embrace them to “further predictability
and stability of the law.” See Weatherford ex rel. Michael L. v. State, 206 Ariz.
529, 533 ¶ 9 (2003). Here, because the federal appellate courts’
jurisprudence is uniform and sound, we decline to depart from it.
D.
¶22 Despite federal appellate courts’ refusal to extend Carpenter’s
exception to the third-party doctrine to IP addresses and ISP subscriber
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Opinion of the Court
information, the court of appeals’ dissent and Mixton argue that this
information should fall within Carpenter’s exception. Mixton, 247 Ariz.
at 228–29 ¶¶ 42–43 (Eckerstrom, J., dissenting in part). We disagree. Both
stretch Carpenter beyond its jurisprudential reach.
¶23 First, Carpenter expressly preserved the third-party doctrine’s
existing application to information, such as cell phone and bank records,
that is shared with a third party. See 138 S. Ct. at 2216–17, 2220 (“We do not
disturb the application of Smith and Miller.”). It is beyond contention that
IP addresses and ISP subscriber information fit this description. Second,
the nature of an IP address and ISP subscriber information is fundamentally
different from CSLI’s perpetual surveillance attributes.
“IP addresses . . . are widely and voluntarily disseminated in the course of
normal use of networked devices,” United States v. Weast, 811 F.3d 743, 748
(5th Cir. 2016), reveal only the approximate geographical location of a
subscriber, supra ¶ 3, and do not divulge the content of a user’s
communication, supra ¶¶ 17–18. ISP subscriber information includes only
data the subscriber voluntarily provides the ISP—typically the subscriber’s
name, address, and phone number. Third, although internet activity may
be akin to cell phone use in its centrality to participation in a modern
society, CSLI is generated without an affirmative act by cell phone users
and can be avoided only by ceasing cell phone use entirely, whereas
internet users retain a measure of autonomy in masking their online
activities. For example, users can anonymously access the internet via
public and private services, such as public libraries and public WiFi
networks at private businesses, or mask their online movements through
proxy services like virtual private networks (“VPN”). See Shuntich &
Vogel, supra ¶ 3, at 51. Thus, the IP address may not trace back to the user
if he uses a third-party network. See Hood, 920 F.3d at 89 (describing a
suspect’s use of a hotel’s Wi-Fi network to access a messaging app).
¶24 We also reject Mixton’s request that we recognize a novel
Fourth Amendment protection to avert the government’s theoretical
derivative use of IP addresses to trace internet users’ browsing history.
Mixton’s sole source for this claim is a 2013 report by the Office of the
Privacy Commissioner of Canada, which asserts that an IP address’s
internet history can be discovered by using the address as a search term in
Google and other public search engines. Off. of the Priv. Comm’r of Can.,
What an IP Address Can Reveal About You (May 2013),
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https://www.priv.gc.ca/en/opc-actions-and-
decisions/research/explore-privacy-research/2013/ip_201305/.
¶25 Mixton’s claim is a thin reed upon which to rest a radical
departure from unanimous federal Fourth Amendment jurisprudence
concerning the lack of a privacy interest in an IP address. First, the study
appears premised on the unproven assumption that an IP address search
accurately and exhaustively identifies websites visited by a user. Second,
it is not apparent that the report’s results have been replicated, and we are
unaware of any other authority that supports the report’s claim that an IP
address’s exhaustive search history is publicly accessible. See Product
Privacy Notice – VPN Products, Pango,
https://www.pango.co/privacy/vpn-
products/#:~:text=Our%20VPN%20products%20do%20not%20log%20or
%20otherwise%20record%20IP,accessed%20through%20a%20VPN%20con
nection (last visited Jan. 05, 2020) (explaining that an IP address only reveals
a user’s ISP and geographical identifiers). In fact, during argument, counsel
for Mixton conceded that, with respect to such Google searches, she did not
“know specifically how much information [IP addresses] reveal.” Third,
even if an IP address could be used to peruse a user’s search history with a
public search engine, any assertion of privacy is even more attenuated
because a website would have to deliberately publicize its visitors’ IP
addresses to reveal a user’s browser history. See Joshua J.
McIntyre, Balancing Expectations of Online Privacy: Why Internet Protocol (IP)
Addresses Should Be Protected As Personally Identifiable Information, 60 DePaul
L. Rev. 895, 896 (2011) (explaining that IP addresses are logged by a visited
website); Ron A. Dolin, J.D., Ph.D., Search Query Privacy: The Problem of
Anonymization, 2 Hastings Sci. & Tech. L.J. 137, 160–61 (2010) (asserting that
IP addresses disclosed to a search engine may become the intellectual
property of the search engine); Wikipedia, Welcome
unregistered editing, https://en.wikipedia.org/wiki/Wikipedia:Welcome_
unregistered_editing (last visited Jan. 05, 2020) (explaining that Wikipedia
records and publicizes the IP addresses of users who edit a page without
logging into an account); Zach Lerner, A Warrant to Hack: An Analysis of the
Proposed Amendments to Rule 41 of the Federal Rules of Criminal Procedure, 18
Yale J.L. & Tech. 26, 64 (2016) (“The collection of a user’s IP address is less
harmful to that user than the collection of his or her browsing history, email
content, or other, more personal information.”). Finally, there is no
allegation in this case that the State made derivative use of Mixton’s IP
address. Instead, the sole issue before us is the constitutionality of the
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State’s use of a federal administrative subpoena to obtain an IP address and
ISP subscriber information, which is the only relevant authority the federal
statute confers.
¶26 In sum, Carpenter expressly preserves existing applications of
Smith and Miller and its logic does not extend its exception to the third-party
doctrine for CSLI information to IP addresses and ISP subscriber
information. Such information does not implicate the privacy interests
embodied in the de facto omnipresent surveillance generated by “detailed,
encyclopedic” CSLI information. Carpenter, 138 S. Ct. at 2217. Therefore,
we hold that—just as every federal court has held—the Fourth Amendment
does not, in light of Carpenter, require a search warrant to obtain IP
addresses and ISP subscriber information.
II.
¶27 We turn next to Mixton’s contention that the Arizona
Constitution, article 2, section 8, requires the State to obtain a warrant or
court order to acquire his IP address or ISP subscriber information.
A.
¶28 Our primary purpose when interpreting the Arizona
Constitution is to “effectuate the intent of those who framed the provision.”
Jett v. City of Tucson, 180 Ariz. 115, 119 (1994). “When the language of a
provision is clear and unambiguous, we apply it without resorting to other
means of constitutional construction.” Heath v. Kiger, 217 Ariz. 492, 494 ¶ 6
(2008). We may examine its history, if necessary, to determine the framers’
intent. Boswell v. Phx. Newspapers, Inc., 152 Ariz. 9, 12 (1986).
¶29 The Arizona Constitution provides that “[n]o person shall be
disturbed in his private affairs, or his home invaded, without authority of
law.” Ariz. Const. art. 2, § 8. This section, entitled “Right to Privacy” and
often referred to as the “Private Affairs Clause,” was adopted verbatim
from the Washington State Constitution. See Wash. Const. art. 1, § 7.
Passage of Arizona’s Private Affairs Clause preceded the Fourteenth
Amendment’s incorporation of the Fourth Amendment, see John Leshy, The
Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, 81 (1988), but it “is of
the same general effect and purpose as the Fourth Amendment to the
Constitution of the United States.” Turley v. State, 48 Ariz. 61, 70 (1936).
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¶30 As an analytical starting point, we compare the texts of
Arizona’s Constitution and the relevant federal amendments to determine
whether Arizona’s Constitution provides greater protections than its
federal counterpart. See, e.g., Brush & Nib Studio, LC v. City of Phoenix, 247
Ariz. 269, 281 ¶ 45 (2019) (comparing the language in the First Amendment
and article 2, section 6 of the Arizona Constitution). We have observed that
“[t]he Arizona Constitution is even more explicit than its federal
counterpart in safeguarding the fundamental liberty of Arizona citizens.”
State v. Ault, 150 Ariz. 459, 463 (1986). The Fourth Amendment protects a
finite index of enumerated items—“persons, houses, papers, and effects”—
whereas the Private Affairs Clause, by its terms, encompasses the
seemingly more expansive realm of “private affairs.” Compare U.S. Const.
amend. IV with Ariz. Const. art. 2, § 8.
¶31 We have noted since statehood that “[s]ection 8, article 2, of
the state Constitution . . . , although different in its language, is of the same
general effect and purpose as the Fourth Amendment, and, for that reason,
decisions on the right of search under the latter are well in point on section
8.” Malmin v. State, 30 Ariz. 258, 261 (1926). See also State v. Pelosi, 68 Ariz.
51, 57 (1948) (noting that the Private Affairs Clause “was adopted for the
purpose of preserving the rights which the Fourth Amendment to the
Federal Constitution was intended to protect”), overruled on other grounds by
State v. Pina, 94 Ariz. 243 (1963). “We have the right, however, to give such
construction to 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, 48 Ariz. at 70–71.
¶32 Indeed, we have recognized that the Private Affairs Clause
provides broader protections to the home than the Fourth Amendment.
Ault, 150 Ariz. at 463. But we have also recognized the value in uniformity
with federal law when interpreting and applying the Arizona Constitution.
See State v. Casey, 205 Ariz. 359, 362 ¶ 11 (2003) (superseded by statute,
A.R.S. § 13–205(A)) (“Although this court, when interpreting a state
constitutional provision, is not bound by the Supreme Court’s
interpretation of a federal constitutional clause, those interpretations have
‘great weight’ in accomplishing the desired uniformity between the
clauses.”). To that end, we have held that the exclusionary rule, for
example, as a matter of state law is “no broader than the federal rule.” State
v. Bolt, 142 Ariz. 260, 269 (1984) (“It is poor judicial policy for rules
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governing the suppression of evidence to differ depending upon whether
the defendant is arrested by federal or state officers.”). Notably, we have
yet to expand the Private Affairs Clause’s protections beyond the Fourth
Amendment’s reach, except in cases involving warrantless home entries.
State v. Peltz, 242 Ariz. 23, 30 ¶ 24 n.3 (App. 2017).
B.
¶33 “Private affairs” is not defined in the Arizona Constitution.
When the Arizona Constitution does not define its terms, we “look to their
‘natural, obvious, and ordinary meaning,’” Kotterman v. Killian, 193 Ariz.
273, 284 ¶ 33 (1999) (quoting Cnty. of Apache v. Sw. Lumber Mills, Inc., 92
Ariz. 323, 327 (1962)), and our focus is on their meaning at the time the
Constitution was adopted. See Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 78 (2012) (“Words must be given the
meaning they had when the text was adopted.”). “Private” is defined as
“affecting or belonging to private individuals, as distinct from the public
generally.” Private, Black’s Law Dictionary (2d. ed. 1910); see also Private,
New Websterian Dictionary (1912) (“peculiar to one’s self; personal; alone;
secret; not public; secluded; unofficial”). “Affairs” is defined as “a person’s
concerns in trade or property; business.” Affairs, Black’s Law Dictionary
(2d. ed. 1910). Thus, because “private affairs” is an ambiguous concept that
eludes precise demarcation, it is subject to differing interpretations.
Therefore, to discern its meaning, we may consider the context of the
provision, “the language used, the subject matter, its historical background,
its effects and consequences, and its spirit and purpose.” Wyatt v.
Wehmueller, 167 Ariz. 281, 284 (1991).
¶34 To discern the meaning of the Private Affairs Clause, we
consider the history of its passage. Boswell, 152 Ariz. at 12–13. “Arizona’s
right to privacy was taken verbatim from the Washington constitution, and
the records of the Arizona constitutional convention contain no material
addressing its intent.” Hart v. Seven Resorts Inc., 190 Ariz. 272, 277 (App.
1997) (considering the Arizona constitutional convention record in holding
that article 2, section 8 does not restrict a private individual’s actions). The
most consequential reference to article 2, section 8, arose in the context of a
discussion of article 14, section 16, which requires the “records, books and
files” of most types of public corporations to be subject to the “full visitorial
and inquisitorial powers of the state.” See Leshy, supra ¶ 29, at 86–87.
Delegates argued in favor of article 14, section 16, because “corporations
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were ‘persons’ and thus protected by the privacy provisions of the
Declaration of Rights in article II,” and the provision was necessary to
facilitate regulatory oversight of corporations. Id. at 87. To the extent this
reference may implicitly support the proposition that the Private Affairs
Clause shields a corporation from the state’s sweeping legislative authority
to examine all of its records for regulatory purposes as envisioned under
article 14, section 16, it does not illuminate whether a federal administrative
subpoena seeking non-content information from a third-party corporation
to advance a criminal investigation of a subscriber runs afoul of the Arizona
Constitution. And although the constitutional convention record is silent
on the intent of the Private Affairs Clause, it details several delegates’
objections to extending state constitutional protections in other contexts
beyond those recognized under the federal Constitution at the time. See,
e.g., id. at 84–85 (discussing an amendment which would have suppressed
evidence obtained from prisoners “under the ‘third degree’” or by torture,
and the convention’s rejection of a proposal to ban the death penalty).
¶35 Mixton and Amici argue that the Arizona constitutional
convention’s deliberations support the view that the Private Affairs Clause
protects IP addresses and ISP subscriber information. Amicus Goldwater
Institute and the dissent advance the argument that Arizona adopted the
provision to shield businesses and individuals from growing government
demands to investigate their financial dealings. See Timothy Sandefur, The
Arizona “Private Affairs” Clause, 51 Ariz. St. L.J. 723, 731 (2019) (highlighting
historical editorial complaints from the Arizona Republican against
legislative investigations); infra ¶ 108. But, as noted, the constitutional
convention record is devoid of affirmative evidence of this sentiment.
Further, the dissent’s reliance on contemporaneous editorial comments
made to the Arizona Republican sheds no light on this issue, because those
complaints centered on the dangers of sweeping legislative investigations
involving unfettered state access to a corporation’s business records for
political or nefarious purposes. Id. In short, notably absent from the
records of the constitutional convention is any objection to state use of a
subpoena to obtain a business record to facilitate a legitimate criminal
investigation of a corporate customer.
¶36 Having failed to identify relevant support for its position in
the Arizona constitutional convention archives or contemporaneous
writings from the local paper of record, the dissent asserts the federal third-
party doctrine and its underlying logic are irreconcilable with the Arizona
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Constitution because “‘private affairs’ were understood in the early
Twentieth Century to broadly encompass both personal and business
matters, even if transmitted through third parties.” Infra ¶¶ 100, 107. But
the dissent’s examples—telegraphs, census data, tax returns, and the like—
concern the propriety of public disclosure of the content of communications
or sensitive information gathered by the government. Infra ¶ 106. The legal
protections afforded the contents of telegraphs or detailed personal census
or tax information collected by the government do not inform whether non-
content IP address or ISP information is a “private affair” under the Arizona
Constitution.
¶37 The dissent also cites to Boyd v. United States, 116 U.S. 616
(1886), and Ex parte Jackson, 96 U.S. 727 (1877), in support of its claim that,
at the time of Arizona statehood, the Private Affairs Clause was widely
understood to include business transactions “even within Fourth
Amendment jurisprudence at the turn of the century.” Infra ¶ 109. But Boyd
is distinguishable because it merely held that the Fourth and Fifth
Amendments foreclose the government from compelling a defendant
business owner in a criminal and forfeiture case, without a warrant, to
produce at trial self-incriminating business records. 116 U.S. at 620–22.
And Jackson simply establishes the unremarkable proposition that opening
and reading the contents of sealed mail requires a warrant. 96 U.S. at 733.
Boyd and Jackson fail to illuminate what convention delegates may have
thought about an entirely different constitutional proposition—the
propriety of the state’s use of an administrative subpoena for corporate
records to advance a criminal investigation against a customer who does
not own or control the records.
¶38 Significantly, even assuming the Private Affairs Clause
protects private information unrelated to business dealings, nothing in the
record supports the proposition that the Arizona Constitution prohibits the
state from obtaining an IP address and ISP information from a third-party
provider, via federal subpoena, to advance a criminal investigation. If
anything, the text of article 14, section 16, and the discussion preceding its
passage, militate in favor of state access to certain corporate records held by
third parties to aid criminal investigations. Accordingly, Arizona’s
constitutional convention record does not support the conclusion that the
Private Affairs Clause protects such information and, thus, forecloses the
State’s warrantless access to it.
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Opinion of the Court
C.
¶39 We next address the applicability of the “reasonable
expectation of privacy” analysis to our delineation of the scope of the
Private Affairs Clause’s protections.
¶40 The dissent urges that we avoid any inquiry of the
reasonableness of our citizens’ expectation of privacy in discerning the
meaning of “private affairs.” Infra ¶ 127. But the very concept of “privacy”
is difficult to reconcile with persons who transmit information to third
parties, such as corporate entities, who are free to collect, maintain, and
make collateral commercial use of it. Consequently, any definition of
“privacy” must logically entail consideration of the nature of the
information, and whether and how it is shared with others. Additionally,
it must necessarily include an assessment of the reasonableness of an
asserted privacy interest to determine whether it is, in fact, private.
¶41 Our consideration of the reasonable expectation of privacy
analysis, or at least its inherent logic in defining the scope of the Private
Affairs Clause, is not novel, and the dissent ignores or discounts our long-
standing approach to article 2, section 8. We do not discern the scope of the
Private Affairs Clause in a vacuum, but rather we apply the “reasonable
expectation of privacy test” to determine its protections. See, e.g., Mazen v.
Seidel, 189 Ariz. 195, 198–200 (1997) (holding that a homeowner forfeits any
reasonable expectation of privacy once firefighters enter his house); Ault,
150 Ariz. at 463 (“It is clear that the Fourth Amendment . . . and article 2,
section 8 of the Arizona Constitution proscribe unreasonable search and
seizure by the state.”); State v. Juarez, 203 Ariz. 441, 445 ¶ 16 (App. 2002)
(“Arizona courts have consistently applied the Fourth Amendment’s
‘legitimate expectation of privacy’ requirement when determining
unlawful search or seizure claims made pursuant to Article 2, Section 8.”).
Thus, the Private Affairs Clause protects a privacy interest in an IP address
and ISP subscriber information only if society is prepared to accept such an
expectation of privacy as reasonable, see Mazen, 189 Ariz. at 198–200; Juarez,
203 Ariz. at 445 ¶ 16, or, stated differently, if the nature and use of the
information is consistent with what is reasonably conceived as being
private.
¶42 Mixton and the court of appeals contend that internet users
are entitled to a reasonable expectation of privacy in all internet activity.
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But the technological reality belies this claim. Indeed, the websites
themselves are public, and are locatable through public search engines.
Moreover, third parties often engage in pervasive and prolific derivative
disclosure and sharing of internet users’ online activity. For example,
“[i]nternet activity tracking is used frequently by online advertising
networks to create target[ed] advertisements based on users’ individual
preferences by tracking the user in a variety of ways.” Alicia Shelton, A
Reasonable Expectation of Privacy Online “Do Not Track” Legislation, 45 U. Balt.
L.F. 35, 41 (2014). In fact, third-party advertisement networks often share
browsing information from multiple websites to build profiles on users. See
id. (“Suddenly the ad network knows not just technical details of a browser,
but potentially very personal information about its user.”). An
investigation of third-party collection and use of internet users’ activity
revealed that numerous companies track online activity through the top 100
visited websites. Andrew Couts, Top 100 Websites: How They Track Your
Every Move Online, Digital Trends (Aug. 30, 2012),
http://www.digitaltrends.com/web/top-100-websites-how-are-they-
tracking-you/.
¶43 Website operators also collect data on, and analyze, internet
users’ activities. For example, websites can use “browser fingerprinting”
programs to gather “innocuous bits of information, such as a browser’s
version number, plug-ins, operating system, and language, [so that]
websites can uniquely identify (‘fingerprint’) a browser and, by proxy, its
user.” Omer Tene & Jules Polonetsky, To Track or “Do Not Track”: Advancing
Transparency and Individual Control in Online Behavioral Advertising, 13 Minn.
J.L. Sci. & Tech. 281, 294–95 (2012); see also DuckDuckGo, Privacy
Mythbusting #4: I can’t be identified just by browsing a website. (If only!) (July
11, 2017), https://spreadprivacy.com/browser-fingerprinting/. Apps and
other programs on mobile devices can also be used to “track users across
websites.” See Tene & Polonetsky, supra, at 296; Thomas Brewster,
Exclusive: Warning Over Chinese Mobile Giant Xiaomi Recording Millions of
People’s ‘Private’ Web and Phone Use, Forbes (Apr. 30, 2020, 09:25 AM),
https://www.forbes.com/sites/thomasbrewster/2020/04/30/exclusive-
warning-over-chinese-mobile-giant-xiaomi-recording-millions-of-peoples-
private-web-and-phone-use/#75527f831b2a. Websites also often employ
“cookies” that allow them to track internet users’ browsing habits. In re
Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 268 (3d Cir. 2016).
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¶44 In sum, in this age of information sharing and inter-
connectivity, “[m]ost of us understand that what we do on the [i]nternet is
not completely private.” Id. at 266 (noting that our personal data “feed[s]
an entire system of trackers, cookies, and algorithms designed to capture
and monetize the information we generate”). Our “ubiquitous and
pervasive internet use” that is “internet-connected, cloud-dependent, and
app-reliant for personal communications, all manner of commercial
transactions, 24-7 entertainment, and universal positional tracking,” makes
it hard to believe that anyone still retains “this largely antiquated notion”
of “anonymity in their internet use.” Mixton, 247 Ariz. at 230 ¶ 49
(Espinosa, J., dissenting in part). Whether internet users are troubled with
this degree of data collection and sharing is beyond the purview of our
authority. It is the legislature’s prerogative to proscribe or curtail use of
such data. However, given third-parties’ widespread and pervasive
collection, analysis, and sharing of detailed internet activity, including
website visitation, we are unpersuaded that Mixton held a reasonable
expectation of privacy in his IP address and ISP subscriber information.
Consequently, as here, when a person discloses non-content information to
a third party, even under the earnest but misguided belief that the third-
party will safeguard the information, such information sharing is
fundamentally inconsistent with any notion of privacy and he forfeits a
reasonable expectation of privacy in that information. See Carpenter, 138 S.
Ct. at 2216.
¶45 The dissent asserts that the reasonable expectation inquiry
provides an “amorphous standard” that is absent in our constitutional text.
Specifically, the dissent claims that this framework “replaces an objective
state constitutional command with a subjective standard whose meaning
changes over time to reflect an evolving societal consensus.” In so claiming,
the dissent dismisses the relevance of court decisions to the inquiry. Infra
¶ 111.
¶46 The dissent overlooks the obvious. The text of the Private
Affairs Clause does not define the meaning of “private affairs,” nor does
the history of its passage delineate the scope of its application. Thus, its text
does not command, objectively or otherwise, the standard by which we
determine its reach. We merely follow this Court’s longstanding approach
in applying the reasonable expectation analysis to determine how to apply
the Private Affairs Clause, and the central inquiry remains whether an
asserted interest is private. See supra ¶ 41. The dissent’s invocation of “an
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objective state constitutional command” does nothing to inform the
inquiry.
¶47 The unanimous federal court authority, supra ¶ 20, and the
clear consensus of state courts, infra ¶ 64, finding no privacy interest in IP
addresses and ISP subscriber information, have affirmed their respective
jurisdiction’s popular consensus on this point as reflected in their laws
permitting access to this information without court authorization. Federal
and state laws—like the one that authorized the federal administrative
subpoenas in this case—reflect a consensus view of our citizens’ privacy
interests in IP addresses and ISP subscriber information. Furman v. Georgia,
408 U.S. 238, 383 (1972) (Burger, CJ., dissenting) (“[I]n a democratic society
legislatures, not courts, are constituted to respond to the will and
consequently the moral values of the people.”). Here, the Arizona
legislature also expressed the will of our citizens by authorizing law
enforcement officials to obtain such information with subpoenas. See A.R.S.
§ 13-3018(A), (C).
¶48 The dissent urges that in lieu of assessing what reasonable
expectation of privacy society is prepared to accept, we should adopt an
analytical framework wherein we ask two questions: “(1) whether the
search encompasses intimate details of a person’s life, and (2) whether the
disclosure of information was made for a limited purpose and not for
release to other persons for other reasons. If those two criteria are met, the
information is a private affair and the government may obtain it only with
authority of law.” Infra ¶ 127. The dissent then concludes that both criteria
are met here. We disagree.
¶49 First, IP addresses and ISP information do not reveal intimate
details of a person’s life. Supra ¶¶ 3, 25. Second, as discussed, an IP address
is akin to a return address on an envelope deposited in the mail, and an
internet user’s online activities are routinely “released to other persons for
other reasons.” Supra ¶¶ 2, 40–41. Third, IP addresses and ISP records
belong to the third-party provider, not the subscriber. Supra ¶ 25.
Moreover, despite the dissent’s assertion that sharing information with
individuals in an ostensible position of trust does not render the
information public, infra ¶ 130, providing information to a third-party ISP
that may disseminate the information for commercial purposes stretches
the notion of privacy too far. Thus, we conclude that IP addresses and ISP
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Opinion of the Court
information are not a “private affair” even under the dissent’s alternative
analytical approach.
¶50 Essentially, the dissent contends that the textual differences
between the Fourth Amendment and the Private Affairs Clause necessarily
lead to different protections for IP addresses and subscriber information.
Infra ¶¶ 78, 86–89, 99. We disagree. Although we agree that the textual
variations signal broader protections under the Private Affairs Clause, we
reject the dissent’s implication that the term “private affairs” forecloses
consideration of conduct—such as sharing information with a third party—
that is inconsistent with the notion of privacy when defining the provision’s
scope, or that its different terms necessarily provide broader protections
than the Fourth Amendment in every circumstance.
¶51 Thus, we conclude that an IP address and subscriber
information are not “private affairs” under the Private Affairs Clause
because the nature of the information is inconsistent with privacy: an
internet user’s expectation of privacy in such non-content information is
unreasonable in light of the nature of the information; it is voluntarily
shared with third parties; and such third parties own, and often engage in
pervasive legal derivative use of, it.
D.
¶52 The court of appeals asserts that the state’s possession of an
IP address and ISP subscriber information is the “twenty-first-century
equivalent of a trip through a home to see what books and magazines the
residents read, who they correspond with or call, and who they transact
with and the nature of those transactions.” Mixton, 247 Ariz. at 225 ¶ 27.
We disagree. As discussed, supra ¶ 25, an IP address does not provide the
state with an illicit view into an internet user’s private affairs because,
absent a warrant, the state is prohibited from examining the substance or
content of a user’s communications. In fact, the only information the state
theoretically could acquire about an internet user’s online activities through
an IP address is the information a user discloses to a website and which the
website subsequently chooses to publicize. See, e.g., Kelly Weill, Edits to
Wikipedia pages on Bell, Garner, Diallo traced to 1
Police Plaza, Politico (Mar. 13, 2015, 05:28 AM), https://www.politico.com
/states/new-york/city-hall/story/2015/03/edits-to-wikipedia-pages-on-
bell-garner-diallo-traced-to-1-police-plaza-087652 (explaining that
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Opinion of the Court
reporters determined internet users at New York Police Department
headquarters edited Wikipedia pages because Wikipedia published the IP
addresses of unregistered editors).
¶53 The sole issue before us is whether the State may obtain an IP
address and ISP subscriber information with a valid federal administrative
subpoena. Although we hold that internet users, by virtue of voluntarily
providing this non-content information to third-party providers, do not
have a reasonable expectation of privacy in this discrete class of information
under the federal or Arizona Constitutions, we need not consider the
constitutionality of the State’s theoretical derivative use of this non-content
information to discover what some websites may publicize about a user’s
internet search history. We underscore, however, that the third-party
doctrine applies only to non-content information, see supra ¶¶ 14–20;
18 U.S.C. § 2702(a) (protecting the “contents of a communication”), as does
our holding under the Arizona Constitution.
E.
¶54 Mixton and the court of appeals rely on cases from other
jurisdictions that have rejected applications of the third-party doctrine, or
the doctrine’s inherent logic, on state constitutional grounds. The court of
appeals claims that these states have rejected this approach under their state
constitutions because they have concluded that “people . . . have a
reasonable expectation of privacy in information they must furnish to
companies providing banking, phone, and internet services in order to use
those services.” See Mixton, 247 Ariz. at 224 ¶ 25 (collecting cases from
states that have rejected the third-party doctrine on state constitutional
grounds). But, save one of these cases, infra ¶ 62, these courts have not
recognized a reasonable expectation of privacy in an IP address or ISP
subscriber information.
¶55 In any event, numerous state courts have applied the third-
party doctrine or similar reasoning under their respective constitutions. See
State v. Clark, 752 S.E.2d 907, 921 n.13 (W. Va. 2013) (noting that Alabama,
Georgia, Kansas, Maryland, North Carolina, North Dakota, Oklahoma, and
South Carolina have adopted the third-party doctrine pursuant to Smith
and Miller). At best, Mixton correctly notes a split in state court authority
on the applicability of the third-party doctrine or similar reasoning to state
constitutions.
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Opinion of the Court
¶56 Mixton places particular emphasis on Washington state court
decisions, namely State v. Gunwall, 720 P.2d 808, 812 (Wash. 1986), and State
v. Miles, 156 P.3d 864, 868 ¶ 14 (Wash. 2007), for the proposition that the
third-party doctrine or its reasoning is inconsistent with Arizona’s Private
Affairs Clause. Mixton contends that Washington has rejected Miller and
Smith and, thus, the third-party doctrine, and urges us to do the same. We
are unpersuaded. Washington has not categorically rejected the third-party
doctrine or its logic, but rather examines the scope of its state constitution’s
protections on a case-by-case basis, and it has not considered whether its
constitution requires a warrant or court order to obtain an IP address and
ISP subscriber information.
¶57 Washington courts employ a non-exclusive, six-part test to
determine whether the state constitution affords broader protections than
the federal Constitution. Gunwall, 720 P.2d at 812–13 (enumerating factors
such as the textual language of the state constitution, significant textual
differences between the state and federal constitutions, state constitutional
and common law history, preexisting state law, structural variance between
the state and federal constitutions, and matters of state interest or local
concern). In interpreting the Washington Constitution, “the relevant
inquiry for determining when a search has occurred is whether the State
unreasonably intruded into the defendant’s ‘private affairs.’” Id. at 814.
Thus, Washington courts consider “the type of information those records
revealed” and “what kind of protection has historically been afforded to the
interest asserted” when deciding whether a search violates the state
constitution. Miles, 156 P.3d at 868 ¶ 12–13.
¶58 In Gunwall, the Washington Supreme Court held that a
warrantless pen register violated the Washington Constitution. The court
emphasized that state statutes protecting communications were “broad,
detailed and extend[ed] considerably greater protections to [Washington]
citizens in this regard than . . . comparable federal statutes and rulings.”
720 P.2d at 815. It also reasoned that a pen register, which records all of a
defendant’s outgoing calls, “may affect other persons and can involve
multiple invasions of privacy as distinguished from obtaining documents
in a single routine search using a conventional search warrant.” Id. at 816.
As such, Gunwall relied on Washington’s statutes and the nature of pen
register information to inform its analysis of the scope of Washington’s
constitutional privacy protections.
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Opinion of the Court
¶59 In Miles, the Washington Supreme Court held that the state’s
use of an administrative subpoena to search a person’s banking records
violated the state constitution. 156 P.3d at 866 ¶ 1. The court’s analysis
centered on its precedents and the nature of the seized information to
determine whether it was protected by the state constitution. Id. at 868 ¶ 14
(noting that court’s prior holding that garbage placed at the curb is
protected by the state constitution because it may contain sensitive personal
information). The court emphasized that banking records reveal “what
political, recreational, and religious organizations a citizen supports. They
potentially disclose where the citizen travels, their affiliations, reading
materials, television viewing habits, financial condition, and more.”
Id. at 869 ¶ 17. The Miles Court also noted, as in Gunwall, that state statutes
protect a customer’s banking information and govern third-party
disclosures. Id. at 869 ¶ 16. The court reasoned that the sensitive nature of
a customer’s banking records required a warrant or subpoena issued by a
neutral magistrate for its seizure. Id. at 869–70 ¶¶ 19–22.
¶60 We find Gunwall and Miles distinguishable. First, unlike
Washington, Arizona statutes and court decisions do not provide greater
protections concerning pen registers or banking records than do federal
statutes and rulings. See, e.g., A.R.S. § 13-1812 (authorizing county
attorneys to issue a subpoena duces tecum for financial institution account
records). In fact, contrary to Washington’s expansive legislative privacy
protections which animate its courts’ constitutional decisions in this area,
see State v. Roden, 321 P.3d 1183, 1185–86 (Wash. 2014), the Arizona
legislature has authorized the state to issue administrative subpoenas for
subscriber information and other non-content service provider records
based on a showing that “the information likely to be obtained is relevant
to an ongoing criminal investigation.” See § 13-3018(A), (C). Second, an IP
address or ISP subscriber information does not implicate the privacy
interests addressed in those cases. See supra ¶¶ 24–25.
¶61 The dissent’s reliance on State v. Hinton is similarly misplaced.
There, the Washington Supreme Court held that police may not inspect text
messages on a defendant’s cell phone without a search warrant because
they are a “private affair” under the state constitution. 319 P.3d 9, 11 ¶ 1
(Wash. 2014). But a text message, unlike an IP address or subscriber
information, is considered “content” and, thus, is also subject to the Fourth
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Opinion of the Court
Amendment’s warrant requirement. See Riley v. California, 573 U.S. 373, 403
(2014). Hinton is inapposite to the issue before us.
¶62 We also note that the Washington Supreme Court considers
the interests of national uniformity when determining whether to extend its
state constitutional provisions beyond the federal constitutional
protections. Gunwall, 720 P.2d at 813. We recognize the utility in uniform
state and federal criminal rules, procedures, and standards. See, e.g., Bolt,
142 Ariz. at 269. The nature of cybercrime squarely implicates these
interests and militates in favor of uniform federal and state search and
seizure standards. See, e.g., Megan McGlynn, Competing Exclusionary Rules
in Multistate Investigations: Resolving Conflicts of State Search-And-Seizure
Law, 127 Yale L.J. 406, 411 (2017) (noting that multi-jurisdictional search and
seizure issues are proliferating as a consequence of advancing
technologies).
¶63 Thus, we conclude that, even applying the Washington
courts’ approach, Arizona’s Private Affairs Clause does not require a
warrant or court order to obtain an IP address or subscriber information.
F.
¶64 State courts may be split on the applicability of the third-party
doctrine or similar approaches to state constitutions, but a clear consensus
now exists concerning whether such constitutions protect an IP address and
ISP subscriber information. Of the six states that have considered the issue,
all but one have determined that their citizens hold no reasonable
expectation of privacy in such information. See Rader v. State, 932 N.E.2d
755, 761–62 (Ind. Ct. App. 2010) (holding that the state constitution does not
require a warrant for internet subscriber information); State v. Leblanc, 137
So. 3d 656, 658–62 (La. Ct. App. 2014) (“Even if we were to assume that
defendant or his wife had an actual or subjective expectation of privacy in
the subscriber information provided to Cox, we would still find that this
expectation of privacy would not be recognized by society as reasonable.”);
State v. Mello, 27 A.3d 771, 776–77 (N.H. 2011) (“[W]hile individuals may
have a reasonable expectation of privacy in the contents of their
communications, i.e., the content of e-mails and the specific content viewed
over the Internet, they have no such privacy interest in information
voluntarily disclosed to an Internet service provider in order to gain access
to the Internet.”); State v. Delp, 178 P.3d 259, 262–65 (Or. Ct. App. 2008)
(“[D]efendant has not directed us to any source of law that establishes that
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Opinion of the Court
he has some interest in keeping private the noncontent information that is
held by a third party regarding his Internet usage. Nor are we aware of any
principle that would prevent AOL from responding to a proper
government subpoena concerning his subscriber information.”); State v.
Simmons, 27 A.3d 1065, 1069–70 (Vt. 2011) (“Nothing in our [state
constitutional] rulings suggest that an internet subscriber address and
frequency of use data, unembellished by any personal information, should
be treated as private.”).
¶65 Apart from the court of appeals and dissent here, the only
court to recognize a state constitutional right to privacy in subscriber
information provided to an ISP did not require the state to procure a search
warrant for such information, but rather permitted disclosure of the
information with a grand jury subpoena and without notice to the
subscriber. State v. Reid, 945 A.2d 26, 33–37 (N.J. 2008). The dissent’s search
warrant requirement for non-content IP address and ISP subscriber
information calls into question the viability of other long-standing law
enforcement compulsory process investigative tools, including those that
require a court order to collect private information but permit disclosure
under a lower standard than probable cause. See, e.g., A.R.S. § 13-3017
(authorizing law enforcement officials to obtain a judicial ex parte order to
install and use a pen register or trap and trace device based upon the
likelihood that the information “to be obtained is relevant to an ongoing
criminal investigation”); A.R.S. § 13-1812 (authorizing a county attorney to
issue “a subpoena duces tecum to a financial institution to obtain account
records” in an investigation or prosecution of enumerated offenses).
¶66 The dissent contends that “it should not be difficult” for the
state to obtain a search warrant “in the circumstances of this case.” Infra
¶ 131. But requiring a search warrant to obtain an IP address and
subscriber information would essentially limit law enforcement to
investigating completed internet-based offenses. For example, what if
Mixton had merely queried the undercover detective about trading child
pornographic images, but never transferred the photographs? This
unworkable approach would invariably stifle proactive investigations of
internet-based crimes.
G.
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Opinion of the Court
¶67 The court of appeals and Mixton warn that the logic
underlying the third-party doctrine may lead to eradication of anonymous
speech and that internet users would have to engage in “some unidentified
Herculean effort to maintain anonymity” to partake in internet activities
free from government intrusion. Mixton, 247 Ariz. at 226 ¶ 31. Not true.
¶68 First, Mixton’s assertion of a right to speak anonymously does
not extend to anonymous distribution of illicit material without legal
consequence. See New York v. Ferber, 458 U.S. 747, 763 (1982) (noting “child
pornography as a category of material outside the protection of the First
Amendment”); Mobilisa, Inc. v. Doe, 217 Ariz. 103, 108 ¶ 12 (App. 2007)
(“The right to speak anonymously, however, is not absolute . . . [and] an
anonymous speaker, like a known one, has no First Amendment right to
engage in obscenity.”). Neither the federal administrative subpoena here,
nor any provision under Arizona law, would permit the state to acquire an
IP address or subscriber information for a reason unrelated to a criminal
investigation, and no federal or Arizona constitutional provision protects
the anonymous distribution of child pornography.
¶69 Second, anonymous speech is not implicated in this case
because Mixton did not plausibly endeavor to elude identification.
Although he used a pseudonym as his personal identifier on his Kik
account, he conveyed data files to others using his actual IP address. As
noted, supra ¶ 2, an IP address functions as a return address for any
internet-based computer activity. Essentially, Mixton’s internet use of a
pseudonym is analogous to his mailing a letter under a pseudonym but
scrawling his actual return address on the outside of the envelope.
Unsurprisingly, a letter sender is afforded no constitutional protections to
the information on the outside of an envelope. See Forrester, 512 F.3d at 511.
Although we embrace the principle of anonymous speech and recognize its
inestimable contribution to our liberty, authoring an essay under the
pseudonym “Publius” does little to preserve the author’s anonymity if the
exterior of the envelope containing the essay reads “From the Office of
Alexander Hamilton.”
¶70 Third, the court of appeals and Mixton exaggerate the lengths
necessary to maintain anonymity over the internet. An internet user’s
“Herculean effort to maintain anonymity” entails no more than using
publicly available computers, publicly available WiFi networks, or VPNs to
mask his IP address. Shuntich & Vogel, supra ¶ 3, at 51; supra ¶ 23.
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Opinion of the Court
¶71 Finally, Mixton and the court of appeals’ remonstrance on the
demise of anonymous speech is curious in light of its persistence in the
wake of more than a decade of uniform federal jurisprudence affirming the
constitutionality of law enforcement subpoena access to IP address and ISP
subscriber information. Supra ¶¶ 14–20.
H.
¶72 The court of appeals and Mixton raise the specter of official
misuse of the non-content fruits of the federal administrative subpoena.
This reasoning is highly speculative and beyond the facts before us. We
decline the invitation to center our constitutional analysis on such
speculation about potential abuse of government authority. See Golden v.
Zwickler, 394 U.S. 103, 108 (1969) (noting that “‘concrete legal issues,
presented in actual cases, not abstractions’ are requisite” to adjudicating
constitutional issues (quoting United Pub. Workers of Amer. (C.I.O.) v.
Mitchell, 330 U.S. 75, 89 (1947))).
¶73 First, in this case, the scope of the federal administrative
subpoena is not subject to abuse on its terms because, as relevant here, it
only allows an agency district director or special agent to obtain IP address
and ISP subscriber information based upon an articulable belief that the
information is relevant to investigation of a child-exploitation crime. 19
U.S.C. § 1509(a)(1) (“In any investigation . . . conducted for the purpose
of . . . insuring compliance with the laws of the United States administered
by the United States Customs Service, the Secretary (but no delegate of the
Secretary below the rank of district director or special agent in charge) may
– examine . . . any record . . . which may be relevant to such
investigation.”). The subpoena did not permit the government to obtain
content-based information, which remains subject to a warrant
requirement. Supra ¶¶ 14–20. Any concern that the government may
misuse the non-content IP address and ISP subscriber information, once
lawfully obtained, is not before us.
¶74 Second, it is illogical to condition the constitutionality of an
otherwise lawful compulsory process based on speculation that the process
may be abused or its fruits may be put to illegal use. Instead, an aggrieved
party may seek recourse from the courts to rectify an unlawful search or
seizure. See, e.g., State v. Buccini, 167 Ariz. 550, 558 (1991) (suppressing
27
STATE V. MIXTON
Opinion of the Court
evidence when a police officer “has deliberately or recklessly made material
misstatements and omissions in the original affidavit” and a redrafted
affidavit would otherwise lack probable cause). Here, the state obtained
Mixton’s IP address and ISP subscriber information with a valid federal
administrative subpoena, and could similarly have done so under Arizona
law (§ 13-3018(A), (C)), which ensures that a record is generated to justify
its issuance and to afford a remedy. See United States v. Barnes, No. CR18-
5141 BHS, 2019 WL 2515317, at *7 (W.D. Wash. June 18, 2019) (noting that,
although 19 U.S.C. § 1509(a)(1) provides no suppression remedy, evidence
seized based upon a statutory violation may be suppressed if “the excluded
evidence arose directly out of statutory violations that implicated important
Fourth and Fifth Amendment interests” (quoting Sanchez-Llamas v. Oregon,
548 U.S. 331, 348 (2006))).
CONCLUSION
¶75 We hold that neither the Fourth Amendment to the United
States Constitution nor article 2, section 8 of the Arizona Constitution
requires law enforcement officials to secure a search warrant or court order
to obtain IP addresses or subscriber information voluntarily provided to
ISPs as a condition or attribute of service. The Fourth Amendment does not
apply to IP addresses or subscriber information under the third-party
doctrine, and this information is not a “private affair” under the Private
Affairs Clause. Thus, the state lawfully obtained this information with a
valid federal administrative subpoena.
¶76 Because we hold that IP address and ISP subscriber
information does not qualify for protection as a “private affair” under
article 2, section 8, and that the state lawfully obtained this information with
a federal administrative subpoena, we need not address whether the
Arizona Constitution’s “lawful authority” requirement is necessarily
limited to a search warrant, nor do we consider the state’s good-faith
exception argument.
¶77 We affirm Mixton’s convictions and vacate the court of
appeals’ opinion.
28
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
BOLICK, J., joined by BRUTINEL, C.J. and TIMMER, V.C.J., dissenting.
¶78 We are now in the second century of Arizona statehood, yet
this is the first time the Court has given more than cursory consideration to
the meaning of the private affairs clause of article 2, section 8 of the Arizona
Constitution. That provision has no analogue in the federal constitution
and was clearly intended to provide additional and forceful protections to
Arizonans against government intrusions into their private affairs. Because
the majority interprets the private affairs clause in lockstep with the less-
protective Fourth Amendment as construed by the United States Supreme
Court, thereby draining the meaning expressed in the clause and intended
by its architects, we respectfully dissent.
I.
¶79 As Arizona was the forty-eighth state, its framers “had the
opportunity to ponder more than 100 years of United States history before
penning their own constitution, allowing them to adopt or adjust
provisions employed by the federal government or other states to meet
Arizona’s needs.” Rebecca White Berch et al., Celebrating the Centennial: A
Century of Arizona Supreme Court Constitutional Interpretation, 44 Ariz. St. L.J.
461, 468 (2012) [hereinafter “Berch”]. In some instances, the framers
concluded they could not improve upon the federal constitutional framers’
handiwork; in others, they sought to add greater protections of individual
rights and constraints on government power.
¶80 In particular, as this Court has recognized, our constitution’s
Declaration of Rights is the “main formulation of rights and privileges
conferred on Arizonans.” Mountain States Tel. & Tel. Co. v. Ariz. Corp.
Comm’n, 160 Ariz. 350, 356 (1989). Thus, it is our duty to “first consult our
constitution” whenever a right it “guarantees is in question.” Id. As former
Chief Justice Rebecca Berch observed, “[h]ad the framers merely intended
to mirror the guarantees found in the Federal Bill of Rights, they could have
simply adopted the first eight amendments of the U.S. Constitution. But
records of Arizona’s convention clearly show that the framers did not
always agree with the language or implementation of the Federal Bill of
Rights.” Berch, supra ¶ 79, at 469.
29
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
¶81 The federal constitution is the baseline for the protection of
individual rights, below which the states cannot go; but in our system of
federalism, states are free to provide greater protections. City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 293 (1982); see also PruneYard Shopping Ctr.
v. Robins, 447 U.S. 74, 81 (1980). Our constitution’s framers repeatedly did
so in the Declaration of Rights, and especially in the private affairs clause.
Whereas the vast majority of state constitutions have provisions that
roughly parallel the language of the Fourth Amendment, only two—ours
and Washington State’s, whose provisions are identical—deliberately chose
to depart from the Fourth Amendment’s language in favor of a distinct
provision encompassing a protection for private affairs. Timothy Sandefur,
The Arizona “Private Affairs” Clause, 51 Ariz. St. L.J. 723, 724 (2019).
¶82 Rather than accord independent vitality to a protection of
individual rights in our constitution, the majority urges that we should
extol “the value in uniformity with federal law when interpreting and
applying the Arizona Constitution.” Supra ¶ 32. Uniformity is certainly a
value, and when all other things are equal, uniformity may be preferable to
divergence. But where the Constitution’s framers made deliberate effort to
distinguish our state constitutional protections from the narrower confines
of the federal constitution, our failure to credit and enforce our
constitution’s language and intent inevitably means that those protections
will not have their intended effect. See Berch, supra ¶ 79, at 473 (“[I]t is not
always appropriate to assume that state and federal provisions should be
construed identically, given the unique legislative history, purpose, and
text of the Arizona provision.”); see also Ruth V. McGregor, Recent
Developments in Arizona State Constitutional Law, 35 Ariz. St. L.J. 265, 276
(2003) (“None of the opinions from our court provide any in-depth analysis
of the reasons we have so often opted for a goal of uniformity.”).
¶83 Indeed, the Supreme Court has recognized that an “interest
in uniformity . . . does not outweigh the general principle that States are
independent sovereigns with plenary authority to make and enforce their
own laws as long as they do not infringe on federal constitutional
guarantees.” Danforth v. Minnesota, 552 U.S. 264, 280 (2008). The states’
authority to make distinct rules of criminal procedure, the Court remarked,
“is not otherwise limited by any general, undefined federal interest in
30
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
uniformity. Nonuniformity is, in fact, an unavoidable reality in a federalist
system of government.” Id.
¶84 This Court has consistently recognized “that a Constitution
should be construed so as to ascertain and give effect to the intent and
purpose of the framers and the people who adopted it.” State ex rel.
Morrison v. Nabours, 79 Ariz. 240, 245 (1955); accord Rumery v. Baier, 231 Ariz.
275, 278 (2013). Arizona’s framers did not leave us guessing what they had
in mind in crafting the Declaration of Rights, emphasizing in the first two
sections “the security of individual rights” and that the purpose of
government is “to protect and maintain individual rights.” Ariz. Const. art.
2, §§ 1–2.
¶85 Constitutional text should be interpreted according to its
ordinary public meaning, that is, by reference to the meaning of the
language generally understood when it was adopted. See, e.g., District of
Columbia v. Heller, 554 U.S. 570, 577 (2008). Thus, this Court has emphasized
that “effect be [especially] given to the purpose indicated, by a fair
interpretation of the language used, and unless the context suggests
otherwise words are to be given their natural, obvious and ordinary
meaning.” Morrison, 79 Ariz. at 245; accord State ex rel. Brnovich v. City of
Phoenix, 468 P.3d 1200, 1205 ¶ 21 (2020) (explaining that, in interpreting
state constitutional provisions, “we give the words their ordinary meaning,
unless the context suggests a different one”).
¶86 A comparison of the words of the Fourth Amendment and
those chosen by the framers of article 2, section 8 underscore the stark
differences:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. Const. amend. IV.
31
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
No person shall be disturbed in his private affairs, or his home
invaded, without authority of law.
Ariz. Const. art. 2, § 8.
¶87 Most obvious and pertinent here, the protection of “private
affairs” is nowhere found in the Fourth Amendment. Indeed, a right to
privacy—based not on express constitutional text but on “penumbras,
formed by emanations”—would not be found in the federal constitution for
another 53 years. See Griswold v. Connecticut, 381 U.S. 479, 484 (1965). Its
express inclusion in a 1912 state constitution strongly suggests that the
framers had a significant protection in mind, one whose omission in the
federal constitution they found wanting.
¶88 Moreover, by its terms, the Fourth Amendment is limited to
“persons, houses, papers, and effects,” which are protected only against
“unreasonable searches and seizures.” By contrast, the scope of “private
affairs” under article 2, section 8 is broader on its face, and the protection is
categorical. See State v. Simpson, 622 P.2d 1199, 1205 (Wash. 1980)
(construing identical language that “clearly recognizes an individual’s right
to privacy with no express limitations”).
¶89 And our constitutional language was not chosen randomly.
The delegates to the constitutional convention considered language parallel
to the Fourth Amendment, but instead adopted language containing the
private affairs clause from the Washington Constitution. See Goff, Records
of the Arizona Constitutional Convention 507–08 (1991). In other words, the
language of article 2, section 8 was deliberately chosen as an alternative to the
language of the Fourth Amendment. Cf. State v. Gunwall, 720 P.2d 808, 814–
15 (Wash. 1986) (noting that delegates to the Washington State
constitutional convention specifically rejected Fourth Amendment
language, which “lends support to reading [the private affairs clause]
independently of federal law”).
¶90 Indeed, in rejecting language echoing the Fourth
Amendment, Arizona’s constitutional framers changed existing Arizona
law. The Arizona territory was governed by the Howell Code, which
contained a provision nearly identical to the Fourth Amendment. Howell
32
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
Code art. VII (1864). Once statehood was achieved, the new constitution’s
architects abandoned that approach in favor of the broader, express privacy
provision of article 2, section 8. And when a legislature amends a provision
by making a significant change in language, we presume it intended a
different meaning. Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 256 (2012).
¶91 All of which invites the question: if the framers wanted to
craft language that would be enforced on its own terms, how could they
have better done so than to reject one set of words and deliberately adopt
another? Under such circumstances, we should be loath to interpret the
language the framers chose in lockstep with language the framers
consciously rejected, and indeed, not only as it was interpreted in 1912 but
as the Supreme Court has construed it many years later. See Sandefur, supra
¶ 81, at 750 (“Even if the wording of both constitutions is identical, there is
no constitutional justification for following federal precedent that only
originates after the people of a state ratify their state constitution.”).
¶92 That the framers meant our constitutional language to have
independent vitality necessarily follows from the fact that when our
constitution was adopted, the Fourth Amendment was not yet applicable
to the states through incorporation under the Fourteenth Amendment. See
Wolf v. Colorado, 338 U.S. 25, 33 (1949) (declining to apply exclusionary rule
against the states); see also Twining v. New Jersey, 211 U.S. 78, 108–14 (1908)
(discussing history of incorporation and collecting cases). Thus, our
Declaration of Rights was meant to provide the solitary protection for
individual liberty against the state. Berch, supra ¶ 79, at 468. As former
Chief Justice Ruth McGregor has observed, because the Bill of Rights did
not yet apply to the states, “the drafters of our state constitution could not
have operated under the assumption that interpretations of the federal
constitution would control the rights guaranteed citizens under the state
constitution.” McGregor, supra ¶ 82, at 275.
¶93 And the dominant school of state constitutional interpretation
at the time was originalism, so the framers likely expected their handiwork
to be interpreted on its own terms rather than through federal court
interpretations of a different constitution. See Jeremy M. Christiansen,
Originalism: The Primary Canon of State Constitutional Interpretation, 15 Geo.
33
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
J.L. & Pub. Pol’y 341, 351 (2017); id. at 368–69 (recounting Arizona cases to
that effect). Our early cases specified that the purpose of rules of
interpretation is to arrive at the intent of the framers. See, e.g., State v.
Osborne, 14 Ariz. 185, 204 (1912) (stating that the rule of constitutional
construction that each clause should be given meaning exists “so that intent
of the framers may be ascertained and carried out”).
¶94 This Court frequently has interpreted provisions of our state
constitution more broadly than their federal counterparts, and sensibly, we
have done so especially where the language is different. Thus, we have
repeatedly held that our speech protection is broader than that accorded by
the First Amendment. See, e.g., Brush & Nib Studios, LC v. City of Phoenix,
247 Ariz. 269, 281–82 ¶ 45 (2019); Mountain States, 160 Ariz. at 354–56.
Likewise, our courts have construed the broader language of article 2,
section 17 of the Arizona Constitution to provide greater protection against
eminent domain than does the Fifth Amendment’s takings clause as
construed by the Supreme Court. See, e.g., Inspiration Consol. Copper Co. v.
New Keystone Copper Co., 16 Ariz. 257, 259–60 (1914) (stating that court
decisions construing takings provisions in the federal and other state
constitutions “are not controlling in this state, and, indeed, lend us but little
aid” in interpreting art. 2, § 17); Bailey v. Myers, 206 Ariz. 224, 229 ¶ 20 (App.
2003) (“The federal constitution provides considerably less protection
against eminent domain than our Constitution provides.”). By contrast,
where the state constitutional language parallels that of the Bill of Rights,
we have tended to construe it in tandem with Supreme Court
interpretations of the federal constitutional provision. See, e.g., State v.
Carter, 469 P.3d 449, 449 ¶ 1 n.2 (2020) (“The analysis under both the federal
and state constitutions is the same because the language is virtually
identical . . . .”).
¶95 Before today, this Court’s analysis of the private affairs clause
has been scant. Indeed, the Court’s initial analysis of the interplay between
article 2, section 8 and the Fourth Amendment comprised fewer than fifty
words. Malmin v. State, 30 Ariz. 258, 261 (1926) (cited supra § 31) (stating
that the two provisions “are of the same general effect and purpose”).
Shortly thereafter, the Court emphasized that despite Malmin, “[w]e have
the right . . . to give such construction to our own constitutional provisions
as we think logical and proper, notwithstanding their analogy to the
34
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
Federal Constitution and the federal decisions based on that Constitution.”
Turley v. State, 48 Ariz. 61, 70–71 (1936).
¶96 By contrast, as the majority acknowledges, this Court has
construed the second provision of article 2, section 8—the home invasion
clause—more broadly than the Fourth Amendment. Supra ¶ 32. See State
v. Ault, 150 Ariz. 459, 464–65 (1986) (rejecting the federal inevitable
discovery doctrine); State v. Bolt, 142 Ariz. 260, 264–65 (1984) (holding that
warrantless home entry is per se unlawful absent exigent circumstances).
In Bolt, the Court was “cognizant of the need for uniformity in
interpretation,” but recognized that “[o]ur constitutional provisions were
intended to give our citizens a sense of security in their homes and personal
possessions.” Id. at 264–65. Thus, it rendered its decision “based upon our
own constitutional provision, its specific wording, and our own cases,
independent of federal authority.” Id. at 265. Likewise, in Ault, the Court
noted that “[u]nlawful entry of homes was the chief evil which the Fourth
Amendment was designed to prevent,” 150 Ariz. at 463, and that “our
constitutional provisions were generally intended to incorporate federal
protections . . . [but] they are more specific in preserving the sanctity of
homes and in creating a right of privacy.” Id. at 466 (emphasis added) (citation
omitted).
¶97 These cases, juxtaposed against the Court’s decision today,
leave us in a curious and perplexing place. On the one hand, this Court has
construed the home invasion provision of article 2, section 8 more broadly
than the Fourth Amendment and has rejected Supreme Court doctrines
inconsistent with that clause, even though both provisions protect homes.
By contrast, the majority here subsumes the private affairs clause within the
Supreme Court’s interpretation of the Fourth Amendment, even though the
Fourth Amendment does not on its face protect against government
intrusions into private affairs. By what principle does it do so? We are left
to ponder not only that, but by what standard we will determine when to
give independent meaning to our state constitutional language in other
contexts. By our lights, we should at least do so where the language is
conspicuously different, and certainly where (as here) no analogous
provision exists in the federal constitution. Otherwise, the necessary
consequence is to diminish constitutional protections.
35
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
¶98 It is especially hazardous to hitch the meaning of our
constitution to the Supreme Court’s Fourth Amendment jurisprudence,
which the majority charitably depicts as “uniform and sound,” supra ¶ 21,
but is in fact characterized by confusion and constant change. The opacity
of this jurisprudence is visible in our recent decision in State v. Jean, in which
we attempted to determine whether the Supreme Court’s Fourth
Amendment precedent requires a warrant for police to install a GPS device
on a commercial vehicle under the facts of the case. 243 Ariz. 331 (2018).
The case generated five separate opinions, including a majority opinion
with different parts written by two different justices who disagreed with
the parts of the opinion they did not write. Indeed, even the lodestars
invoked by the majority here—Smith v. Maryland, 442 U.S. 735 (1979), and
United States v. Miller, 425 U.S. 435 (1976)—are called into question, to an
unknown extent, by Carpenter v. United States, 138 S. Ct. 2206 (2018).
¶99 We should not follow that long and winding road of Fourth
Amendment jurisprudence to its uncharted destination. See State v. Ingram,
914 N.W.2d 794, 797–98 (Iowa 2018) (holding that “we encourage stability
and finality in law by decoupling Iowa law from the winding and often
surprising decisions of the United States Supreme Court,” and “take the
opportunity to stake out higher constitutional ground”). When the
constitutions converge, it makes sense to take Supreme Court decisions into
account and place value on uniform application. But where the language
of the two constitutions differs—and especially where our provision does
not appear in the federal constitution in any manner—relying on the
Supreme Court to determine our constitutional meaning deprives our
citizens of the precious freedoms their forebears proclaimed when they
embraced a wider conception of liberty than the federal constitution. After
all, Supreme Court justices do not take an oath to uphold the Arizona
Constitution. But we do.
II.
¶100 This is the first case to attach the Supreme Court’s Fourth
Amendment third-party doctrine to the Arizona Constitution. A fair
36
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
independent reading of the text and intent of article 2, section 8 shows the
protection of private affairs is incompatible with that doctrine.
¶101 While the Fourth Amendment specifies that “persons, houses,
papers, and effects” are protected, article 2, section 8 more broadly protects
“private affairs.” And while the Fourth Amendment prohibits
“unreasonable” searches and seizures, article 2, section 8 categorically
prohibits any disturbance “without authority of law.” By the provision’s
clear terms, then, if the state wishes to invade a person’s private affairs, it
may do so only with authority of law, which makes the definition of
“private affairs” determinative.
¶102 This Court gives provisions in law “their ordinary meaning
unless it appears from the context or otherwise that a different meaning is
intended.” Arizona ex rel. Brnovich v. Maricopa Cnty. Cmty. Coll. Dist. Bd., 243
Ariz. 539, 541 ¶ 7 (2018). The dictionary definition of “private,” both now
and at the time of Arizona’s constitutional adoption, includes anything
concerning an individual or group that is not “intended to be known
publicly.” Private, Merriam-Webster, https://www.merriam-
webster.com/dictionary/private (last visited Jan. 16, 2020); see also Harry
Thurston Peck, New Websterian 1912 Dictionary Illustrated 649 (defining
private as “not public” and “peculiar to one’s self.”). Likewise, “affairs”
means “personal business.” Affairs, Merriam-Webster; accord Peck at 17.
¶103 The majority similarly defines “private” as “affecting or
belonging to private individuals, as distinct from the public generally”; and
“affairs” as “a person’s concerns in trade or property; business.” Supra ¶ 33.
That is the first and only time the majority grapples with the original
meaning of “private affairs,” and it ultimately disposes of the term as
“ambiguous,” id., never to be raised again.
¶104 True, “private affairs” is not unambiguous. But this Court
does not throw up its hands in the face of ambiguity: if
“a constitutional provision is not clear on its face, we can use extrinsic
evidence to show the intent of the framers and the electorate that adopted
it.” Heath v. Kiger, 217 Ariz. 492, 495 ¶ 9 (2008). And significant,
uncontroverted evidence suggests we should read article 2, section 8 in a
way that gives effect to its text.
37
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
¶105 “Private affairs” was a commonly used term during the
period preceding our constitution’s adoption, and the protection of private
affairs was a major preoccupation of contemporary legislatures, courts, and
scholars. See, e.g., Samuel D. Warren & Louis D. Brandeis, The Right to
Privacy, 4 Harv. L. Rev. 193 (1890). A review of these efforts concludes that
“‘[m]ind your own business’ was an eleventh commandment in nineteenth
century America.” The Right to Privacy in Nineteenth Century America, 94
Harv. L. Rev. 1892, 1904 (1981).
¶106 In particular, Americans in the twilight of the Nineteenth and
dawn of the Twentieth Centuries sought to keep what was private from
becoming public. A major concern was preventing the disclosure of private
information when third parties, such as telegraph operators, were entrusted
with transmission or delivery and the “messages were necessarily read by
the operators who sent and received them.” Id. at 1901–02. Similarly,
Congressman James Garfield championed legislation against disclosure of
census information, so that an individual’s “private affairs, the secrets of
his family and his business,” would not be revealed. Id. at 1905. The
shielding of tax returns, in the words of the newspaper The Nation,
protected “the ‘natural and inalienable right’ of everybody to keep his
affairs to himself.” Id. at 1906. Courts likewise protected the confidentiality
of certain public records to prevent making “public men’s private affairs.”
Id. at 1907 (quoting Buck & Spencer v. Collins, 51 Ga. 391, 397 (1874)).
¶107 These examples illustrate that “private affairs” were
understood in the early Twentieth Century to broadly encompass both
personal and business matters, even if transmitted through third parties,
thus making Arizona’s constitutional provision irreconcilable with the
later-emerging federal “third-party” doctrine allowing any information
divulged to a third party to be obtained by the government without a
warrant.
¶108 The protection of private affairs was also reflected in local
concerns. In 1912, the year our constitution was adopted, the Arizona
Republican editorialized against a proposal to disclose the names of their
subscribers, condemning it as a “perniciously inquisitorial” effort to gain
access to “private business affairs and financial affairs.” Sandefur, supra
38
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
¶ 81, at 731 n.47. That same year, the newspaper warned against
congressional investigations of alleged monopolies because “attacks upon
corporate credit and private affairs . . . ought to be deprecated.” Id. at 731.
It appears clear that the common meaning of “private affairs” in statehood-
era Arizona encompassed the type of business transactions that would be
swept up by the third-party doctrine many decades later.
¶109 Indeed, this meaning of private affairs and its inclusion
within our constitutional protections is manifested even within Fourth
Amendment jurisprudence at the turn of the century. In Boyd v. United
States, the Court invalidated, under the Fourth and Fifth Amendments,
federal laws pursuant to which business invoices were obtained without a
warrant. 116 U.S. 616 (1886). The Court held that the principles animating
those amendments “apply to all invasions on the part of the government
and its employe[e]s of the sanctity of a man’s home and the privacies of
life,” holding that obtaining the business records “is the invasion of his
indefeasible right of personal security, personal liberty, and private
property.” Id. at 630. Seemingly anticipating a decision like today’s, the
Court urged “that constitutional provisions for the security of person and
property should be liberally construed. A close and literal construction
deprives them of half their efficacy, and leads to gradual depreciation of the
right, as if it consisted more in sound than in substance.” Id. at 635; see also
Ex parte Jackson, 96 U.S. 727, 733 (1877) (holding that sealed mail cannot be
opened without a warrant).
¶110 Given that the framers of article 2, section 8 intended to
incorporate the protections of the Fourth Amendment, see Ault, 150 Ariz.
at 463, these decisions form at minimum the baseline for the rights
protected. That our framers understood that private affairs meant one’s
business, including transactions with others, is uncontestable. Surely it
would surprise the framers to know that the protections they embraced
would be subject to severe diminution through Supreme Court
interpretations of different provisions in the federal constitution many
decades later.
¶111 Yet the majority asserts that the private affairs clause
“protects a privacy interest . . . only if society is prepared to accept such an
expectation of privacy as reasonable.” Supra ¶ 41. That amorphous
39
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
standard derives not from our constitutional text, but from a concurring
opinion in a Supreme Court decision applying the Fourth Amendment,
Katz v. United States. 389 U.S. 347, 361 (1967) (Harlan, J., concurring).1 In so
doing, the majority replaces an objective state constitutional command with
a subjective standard whose meaning changes over time to reflect an
evolving societal consensus. 2
¶112 That standard has no textual or historical foundation in article
2, section 6. The framers of that provision informed us what society was
prepared to recognize when our constitution was adopted: that any
invasion of private affairs requires authority of law. And for us, then, the
proper inquiry is whether a particular matter constitutes a private affair.
1 In contrast to the majority here, however, Justice Harlan repeatedly
expressed an “aversion to national uniformity,” which he rejected as
inconsistent with our system of federalism that protects pluralism and
individual rights. See J. Harvie Wilkinson III, Justice John M. Harlan and the
Values of Federalism, 57 Va. L. Rev. 1185, 1196 (1971) (citing, inter alia, Duncan
v. Louisiana, 391 U.S. 145, 182 n.21 (1968) (Harlan, J., dissenting) (disdaining
“the needless pursuit of uniformity”) and Ker v. California, 374 U.S. 23, 45
(1963) (Harlan, J., concurring) (expressing concern over a “constitutional
straitjacket”)).
2 Even at the federal level, the Katz formulation has been subjected
to substantial criticism. See, e.g., Carpenter, 138 S. Ct. at 2244 (Kennedy,
Thomas, and Alito, JJ., dissenting) (“That the Katz test departs so far from
the text of the Fourth Amendment is reason enough to reject it. But the Katz
test also has proved unworkable in practice.”); United States v. Jones, 565
U.S. 400, 407 (2012) (stating that courts must, at minimum, preserve the
degree of privacy that existed when the Fourth Amendment was adopted,
and that Katz does not provide the exclusive means to determine that
protection). Remarking on the Katz test’s inherent subjectivity, Justice
Scalia observed that it “bear[s] an uncanny resemblance to those
expectations of privacy that this Court considers reasonable,” and “has no
plausible foundation in the text of the Fourth Amendment.” Minnesota v.
Carter, 525 U.S. 83, 97 (1998) (Scalia, J., concurring).
40
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
¶113 The third-party doctrine is the progeny of Katz. The majority
explains it aptly:
[A] person has no expectation of privacy in information he
voluntarily discloses to third parties, even if there is an
assumption it will be used only for a limited purpose . . . .
And, because it is no longer private, the government may
obtain such information from a third party without triggering
the Fourth Amendment’s protections.
Supra ¶ 14.
¶114 Whatever the continuing vitality of this doctrine following
Carpenter in the Fourth Amendment context, we should reject it here, just
as this Court rejected Supreme Court doctrines that did not reflect the text
and intent of article 2, section 8’s home invasion clause in Ault and Bolt.
Whereas the Fourth Amendment warrant protection applies only where a
reasonable expectation of privacy exists, our protection applies to all
private affairs. As reflected by the types of business transactions that
animated article 2, section 8’s framers, affairs can still be considered private
even if they are shared by two or more people in a position of trust.
¶115 For that reason, the Washington Supreme Court, whose
private affairs provision is both identical to and the source of ours, 3 has
rejected the Fourth Amendment “reasonable expectation of privacy”
construct in interpreting its provision. “While we may turn to the Supreme
Court’s interpretation of the United States Constitution for guidance in
establishing a hierarchy of values and principles under the Washington
Constitution, we rely, in the final analysis, upon our own legal foundations
in determining its scope and effect.” State v. Myrick, 688 P.2d 151, 153
(Wash. 1984). Whereas under Fourth Amendment jurisprudence “the
3 We have often looked for guidance to the Washington Supreme
Court’s decisions when interpreting similar provisions in our constitutions.
See, e.g., Mountain States, 160 Ariz. at 355 (“[O]ur recognition of the broad
protection for speech in Arizona conforms with the Washington Supreme
Court’s reading of Washington Constitution art. 1, § 5, the model for
Arizona’s art. 2, § 6.”).
41
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
inquiry is whether the defendant possessed ‘a reasonable expectation of
privacy,’” id. (quoting Katz, 389 U.S. at 357), “under the Washington
Constitution the relevant inquiry for determining when a search has
occurred is whether the state unreasonably intruded into the defendant’s
‘private affairs.’” Id. at 153–54.
¶116 Nonetheless, several other states have rejected the third-party
doctrine in construing their own constitutions even when they parallel the
Fourth Amendment. See, e.g., State v. Walton, 324 P.3d 876, 906 (Haw. 2014);
State v. Thompson, 810 P.2d 415, 418 (Utah 1991); Shaktman v. State, 553 So.
2d 148, 151 (Fla. 1989); State v. Thompson, 760 P.2d 1162, 1165 (Idaho 1988);
People v. Sporleder, 666 P.2d 135, 141–42 (Colo. 1983); Commonwealth v.
DeJohn, 403 A.2d 1283, 1289 (Pa. 1979). Notably, all those decisions interpret
constitutions that do not contain a private affairs provision.
¶117 Indeed, the Supreme Court itself has questioned the
foundations of the third-party doctrine in the information technology era.
In declining to extend Smith and Miller to certain cell phone records under
control of a third party, the Court noted the “seismic shifts in digital
technology” that have made cell phones and the data they contain and
transmit “‘such a pervasive and insistent part of daily life’ that carrying one
is indispensable to participating in modern society.” Carpenter, 138 S. Ct.
at 2220 (quoting Riley v. California, 573 U.S. 373, 385 (2014)). As with
Internet Protocol (“IP”) addresses, “there is no way to avoid leaving behind
a trail of location data. As a result, in no meaningful sense does the user
voluntarily ‘assume[] the risk’” of having the data turned over to
government officials. Id. (quoting Smith, 442 U.S. at 745).
¶118 Justice Gorsuch made the point even more directly:
Even our most private documents—those that, in other eras,
we would have locked safely in a desk drawer or destroyed—
now reside on third-party servers. Smith and Miller teach that
the police can review all of this material, on the theory that no
one reasonably expects any of it will be kept private. But no
one believes that, if they ever did.
42
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
Id. at 2262 (Gorsuch, J., dissenting). Justice Gorsuch added that “I do not
agree with the Court’s decision to keep Smith and Miller on life support and
supplement them with a new and multilayered inquiry that seems to be
only Katz-squared.” Id. at 2272.
¶119 Whatever the scope and persistence of the third-party
doctrine after Carpenter, or the implications of that case for the facts here,
the Carpenter dissenters aptly remark that the decision “destabilizes long-
established Fourth Amendment doctrine,” id. at 2247 (Alito, J., dissenting)
and will “keep defendants and judges guessing for years to come” id.
at 2234 (Kennedy, J., dissenting) (citation omitted); see also id. at 2213–14
(main opinion) (“[N]o single rubric definitively resolves which expectations
of privacy are entitled to protection.”).
¶120 The majority here prizes national uniformity even where
Arizonans have chosen a markedly different approach in their organic law.
That priority is misplaced given that in our federalist system, “state
constitutions are our basic charters of state governance.” Simpson v. Miller,
241 Ariz. 341, 345 ¶ 8 (2017); accord State v. Wein, 244 Ariz. 22, 32 ¶ 39 (2018)
(Bolick, Gould, and Lopez, JJ., dissenting); see also Jeffrey S. Sutton, 51
Imperfect Solutions: State Constitutions and the Development of American
Constitutional Law 42–83 (2018) (highlighting greater state constitutional
protections for the rights of criminal defendants). We do Arizonans a
disservice by elevating the value of discordant national uniformity over
enforcement of our own constitution and the greater clarity and protection
it affords.
III.
¶121 The majority asserts that a “clear consensus” of state courts
hold that their state constitutions do not protect IP addresses or ISP
subscriber information. Supra ¶ 47. Unfortunately, those decisions do little
to aid us, for none of the constitutions at issue contains a private affairs
clause. Applying the language and intent of our state constitutional
provision, rather than decisions more than a half-century later applying
markedly different constitutional language, we conclude that the data here
43
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
is protected by article 2, section 8’s private affairs clause and may be
obtained by the government only with authority of law. 4
¶122 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. Even under a reasonable expectation of privacy analysis, “[p]eople
often do reasonably expect that information they entrust to third parties,
especially information subject to confidentiality agreements, will be kept
private.” Carpenter, 138 S. Ct. at 2263 (Gorsuch, J., dissenting). Indeed,
sharing such information often is a precondition to engaging in commerce.
The majority points to the widespread third-party data collection on the
internet, supra ¶¶ 42-44, but that observation is simply irrelevant as the
private affairs clause restricts government action. 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.
¶123 The private affairs clause “encompasses those legitimate
privacy expectations protected by the Fourth Amendment; but is not
confined to the subjective privacy expectations of modern citizens who, due
to well publicized advances in surveillance technology, are learning to
expect diminished privacy in many aspects of their lives.” Myrick, 688 P.2d
at 154. “In determining whether a certain interest is a private affair . . . a
central consideration is the nature of the information sought—that is,
whether the information obtained via the governmental trespass reveals
4 Because we would decide the case on independent and adequate
state grounds, it is unnecessary to reach the Fourth Amendment issue. Ault,
150 Ariz. at 466. We note, however, that the third-party doctrine may not
apply given that Mixton did not provide the information obtained by the
government to a single entity. No employee at Kik knew Mixton’s identity,
only his IP address; and no employee at the ISP could have connected
Mixton’s IP address to the postings. The police aggregated information,
rather than retrieving it from a third party to which Mixton conveyed it in
its totality. Cf. Bond v. United States, 529 U.S. 334, 338–39 (2000) (holding
that physical manipulation of luggage was a search, even though the
luggage itself was exposed to the public in the storage rack of a bus).
44
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
intimate or discrete details of a person’s life.” State v. Jorden, 156 P.3d 893,
896 ¶ 8 (Wash. 2007). When the search “involves the gathering of personal
information by the government, this court has also considered the purpose
for which the information sought is kept, and by whom it is kept.” Id. at
¶ 9.
¶124 Thus, courts that have rejected the Supreme Court’s
reasonable expectation of privacy analysis have focused not on societal or
subjective expectations of privacy, but instead have made an objective
determination about whether the information obtained reveals intimate or
discrete details of a person’s life. See, e.g., Myrick, 688 P.2d at 153–54. This
is in keeping with the meaning of private affairs and the provision’s
historical intent and context. Moreover, limited disclosure of personal
information to a private third party, as opposed to the public generally,
does not give the government carte blanche access to that information. See,
e.g., Gunwall, 720 P.2d at 816 (citing State v. Hunt, 450 A.2d 952, 956 (N.J.
1982)) (holding that telephone records are a private affair because, among
other things, telephones are a necessary component of public life and the
disclosure of information to the telephone company was made for a limited
purpose and not for release to other persons for other reasons); People v.
Chapman, 679 P.2d 62, 67 (Cal. 1984) (holding that a telephone company
“customer’s expectation of privacy in information gathered by the company
during the regular course of its business must be honored as a reasonable
one. That expectation cannot be deemed to have been abandoned because
the customer is required to disclose” such information).
¶125 The Washington Supreme Court has construed the identical
language of its constitution that way. “Given the realities of modern life,
the mere fact that an individual shares information with another party and
does not control the area from which that information was accessed does
not place it outside the realm” of the private affairs clause. State v. Hinton,
319 P.3d 9, 15 ¶ 17 (Wash. 2014). In Hinton, the Washington Supreme Court
ruled that police need a warrant to inspect text messages. The Court
acknowledged that those who share personal information assume the risk
that it will be disclosed by a third party, “[b]ut that risk should not be
transposed into an assumed risk of intrusion by the government.” Id.
45
 STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
¶126 Washington State courts have applied those principles under
the private affairs provision to forbid warrantless inspections in a broad
variety of contexts, even garbage. State v. Boland, 800 P.2d 1112, 1116 (Wash.
1990) (holding that although someone placing garbage can expect
scavengers to snoop through it, “[p]eople reasonably believe that police will
not indiscriminately rummage through their trash bags to discover their
personal effects” (quoting State v. Tanaka, 701 P.2d 1274, 1275 (Haw. 1985));
see also State v. Jorden, 156 P.3d 893 (Wash. 2007) (motel registry); State v.
Miles, 156 P.3d 864, 869 (Wash. 2007) (bank records, as they “potentially
reveal[] sensitive information”); State v. Butterworth, 737 P.2d 1297 (Wash.
Ct. App. 1987) (unpublished telephone listing). None of these likely would
be shielded from police inspection under the pre-Carpenter third-party
doctrine, but all were deemed private affairs under Washington State’s
private affairs clause. These cases hold that where private information is
disclosed to limited persons for limited purposes, it retains its private
character for purposes of constitutional protection against searches without
authority of law.
¶127 Adopting this framework for interpreting the identical
language of our private affairs clause would provide greater clarity,
consistency, and predictability than the evolving and uncertain post-
Carpenter Fourth Amendment framework. It adheres to both the text of the
private affairs clause and the intent of its framers to include business
transactions within its protection. Applying this framework, we would not
have to—as the majority has undertaken to do conscientiously yet
unnecessarily—forecast what privacy interests society is prepared to
accept, assess whether a person has a reasonable expectation of privacy
with an anvil on the scale if the person has conveyed that information to a
third party in any fashion, or delve into a fact-based determination of the
nature of the technology or precisely what information it contains or emits.
Rather, in this context, we would ask (1) whether the search encompasses
intimate details of a person’s life, and (2) whether the disclosure of
information was made for a limited purpose and not for release to other
persons for other reasons. If those two criteria are met, the information is a
private affair and the government may obtain it only with authority of law.
¶128 Here, both criteria are plainly met. The IP address and ISP
information at issue, standing alone, do not disclose intimate personal
46
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
information. But when combined (in this case through two different
subpoenas), they allow the police to determine which websites a person has
visited. That information was not made available to the public (indeed, in
combination it was not made available to anyone). Rather, the information
shared through an IP address and with an ISP is necessary to obtain access
to the internet. It is furnished for a limited purpose with the expectation it
will not be shared with others, and certainly not with the government. IP
addresses and ISP location data are not normally held out to the public but,
like a credit card, disclosed to the provider to consummate the transaction.
See Joshua J. McIntyre, Balancing Expectations of Online Privacy: Why Internet
Protocol (IP) Addresses Should be Protected as Personally Identifiable Information,
60 DePaul L. Rev. 895, 900 (2011) (noting that, unlike a physical letter, which
can be mailed without a return address, internet browsing requires leaving
sender data).
¶129 In this regard, the New Jersey Supreme Court’s opinion in
State v. Reid is especially instructive. 945 A.2d 26 (N.J. 2008). The court
recognized that “it is hard to overstate how important computers and the
Internet have become to everyday, modern life. Citizens routinely access
the Web for all manner of daily activities: to gather information, explore
ideas, read, study, shop, and more.” Id. at 33. As they do so, they transmit
a numerical IP address to the websites they visit. Only an ISP, however,
can translate an IP address into a user’s name (or, in this case, a street
address). Having that combined information, “one can track a person’s
Internet usage. ‘The government can learn the names of stores at which a
person shops, the political organizations a person finds interesting, a
person’s . . . fantasies, her health concerns, and so on.’” Id. (quoting Daniel
Solove, The Future of Internet Surveillance Law, 72 Geo. Wash. L. Rev. 1264,
1287 (2004)). But key for our purposes is the court’s recognition that “the
nature of the technology requires individuals to obtain an IP address to
access the Web. Users make disclosures to ISPs for the limited goal of using
that technology and not to promote the release of personal information to
others.” Id. Construing the New Jersey Constitution, whose provision
mirrors the Fourth Amendment, the court held that “users are entitled to
expect confidentiality under these circumstances.” Id. Even though New
Jersey’s constitution has no private affairs clause, this analysis dovetails
with our constitutional text and intent.
47
STATE V. MIXTON
JUSTICE BOLICK, joined by CHIEF JUSTICE BRUTINEL and VICE CHIEF
JUSTICE TIMMER, Dissenting
¶130 The majority suggests that even if such information is a
private affair, the person sharing it must take extraordinary precautions,
such as encryption, or it loses its private character. We have expressly
rejected that argument in the Fourth Amendment context. State v. Peoples,
240 Ariz. 244, 248–49 (2016) (rejecting the arguments that leaving a
cellphone in plain view, or failing to password-protect it, allowed police to
inspect its contents). Rather, we would adhere to the view that when police
seek information about the intimate details of a person’s life by obtaining
information that was shared in limited fashion with persons in a position
of trust, rather than with the public at large, the private nature of the
transaction is maintained to prevent police inspection without a warrant.
¶131 The majority does not reach the question of what constitutes
“authority of law” under these circumstances, so neither do we. But
assuming that a warrant would be necessary, it should not be difficult to
obtain one in this case. Cf. Riley, 573 U.S. at 401 (noting that technology has
made “the process of obtaining a warrant itself more efficient”). As Judge
Eckerstrom noted, “[t]he warrant requirement would have posed no
impediment to the investigation of the instant case. Mixton’s . . .
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.” State v.
Mixton, 247 Ariz. 212, 230 ¶ 47 n.15 (Eckerstrom, J., concurring in part and
dissenting in part); accord id. at 226 ¶ 32 (majority opinion). Regardless of
the burden the government might face in securing such permission, the
protection of having a neutral judge determine the propriety and scope of
a search is essential. That protection becomes more crucial, not less, as
information technology and our dependence upon it grows.
¶132 Our constitution’s framers aimed, as plainly as they could, to
protect our private affairs from unsupervised government scrutiny. The
majority’s non-textual opinion drains meaning from this essential
constitutional protection. For these reasons, and with great respect to our
colleagues, we dissent.
48