Testimony: Constitutional Protections Against Unreasonable Search and Seizure Should Apply to Digital Data
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Testimony: Constitutional Protections Against Unreasonable Search and Seizure Should Apply to Digital Data

Digital communications privacy should be enshrined in the Florida state constitution.

Senate Bill 144 would extend Florida constitutional protections against unreasonable search and seizure to private communication via portable electronic devices, incorporating them into the search warrant process required for other forms of communications.

As digital technology has evolved, it has become the home for our personal and private information, replacing paper documents traditionally stored in file drawers or safes. The government should have to meet the same standards and processes for accessing our personal information in digital form as the constitution set out for our information when it only existed in hard copy. For this reason, it is imperative that digital communications privacy be enshrined in the state constitution.

This conversation began when police were found to be using GPS devices to track locations without warrants and courts were questioning if entire contents of unlocked cell phones could be searched during an arrest Ultimately both of these practices were deemed unconstitutional by the Supreme Court and police now need a warrant to search digital devices because they contain so much information that may or may not be relevant to the arrest at hand.

But as web technology develops and people routinely share information with third-party providers, the question becomes whether that third-party data is public and, if it is not, how should a warrant be written and executed to access the data. Police argue that location data should be public, claiming it is the “network equivalent of public observation” which is not protected by warrant. Similar questions may arise around social media activity and other forms of data.

Should the warrant be written to obtain all of the information, then filtered and sorted by the prosecution manually despite the extensive manpower required?

Do digital searches for keywords represent the completion of the search? Should the police search hardware such as servers and computers, which opens up possibilities of “in plain sight” expansion of their initial interest? Or should third-party providers with a narrow mandate, and no obligation to report other information they might see, prepare data and then send files to the police? Does a warrant to search a house include all of the devices in the home? Or how specific does a warrant in the digital realm need to be? Does clicking on police generated URL advertising illegal activity justify a warrant?

These questions and more will need to be considered once appropriate protections for digital information have been added to the state constitution. What is certain is that police will continually push to have access to more data, but given the importance of privacy, it is vital to protect important personal data in all forms, analog or digital. SB 144 takes an important first step in protecting Florida citizens in this manner.