This is an example of why I love Vermont – just in from the ACLU in a press release:
MONTPELIER — The Vermont Supreme Court gave electronic privacy a big boost Friday when it approved restrictions placed upon police when conducting searches of electronic devices.
In the case, police in Burlington were investigating a report of a person applying for credit cards online using someone else’s identity. Once the police narrowed the investigation to a street address where they thought the perpetrator might live, they asked a judge to issue a search warrant for “all computers or electronic media” located in the house, even though the house had multiple residents.
The judge issued the search warrant, but was wary about approving a broad search of all computers, iPads, and other devices that might be in the house. So he imposed a number of restrictions on the search, including that the police could only look for evidence relating to the alleged identity theft, had to turn the devices over to a third party to conduct the search, and would not be permitted to prosecute a suspect based upon evidence of other crimes found on the devices.
After obtaining the search warrant, state prosecutors appealed the search restrictions to the Vermont Supreme Court. Prosecutors argued that under the Fourth Amendment to the U.S. Constitution, judges must either approve or deny search warrant requests but may not approve them with conditions.
Search warrant applications are not contested, so at the request of the Vermont Supreme Court, the ACLU-VT, the national ACLU and the Electronic Frontier Foundation in San Francisco, “argued that the Fourth Amendment permits judges to tailor search warrants to avoid overly invasive searches.”
On Friday, the Vermont Supreme Court agreed, concluding that conditions limiting the invasiveness of digital searches “serve legitimate privacy interests.”
According to ACLU-VT staff attorney Dan Barrett, “The decision really addresses two questions. The first is whether judges have any ability to limit the invasiveness of digital searches.” The second, he added, is “whether each of the conditions imposed by the trial court that issued the warrant [was] permissible.”
[T]he court held that a judge’s authority to limit the invasiveness of a digital search is the same as the judge’s authority to limit a physical search. Justice John Dooley, writing for the majority, explained: “A judicial officer might authorize a search of a person, including his pockets, without any particular basis for thinking that evidence will be found in the person’s pocket as opposed to elsewhere on his person. But that same officer might permissibly refuse to authorize a search of the person’s body cavities based on evidence of similar generality.”
In both physical and digital searches, the court held, “the investigatory promise must justify the collateral exposure” of a person’s private life.
“That’s a very important statement for modern privacy,” said Allen Gilbert, ACLU-VT executive director. “We’re pleased that the court recognized that electronic devices like iPhones have incredibly personal information on them, like who your intimate partners are, what your finances are like, and whether you have health conditions.”
When it came to the second question – the legitimacy of each of the specific conditions that the trial court imposed on the search warrant — the Vermont Supreme Court upheld all but one.
More about that “one condition” on the flip.
The sole condition struck by the Supreme Court was the requirement that the police not use evidence of other, unrelated crimes that might be discovered during the search. “[W]e find this instruction unnecessary for privacy protection and inappropriate,” the decision held, because the search would be conducted by a third party, and the police therefore wouldn’t stumble upon evidence of an unrelated crime.
“The trial court did some very forward thinking and borrowed some ideas from electronic discovery methods in civil litigation,” said Barrett, “things like turning the hard drive images over to a third party data contractor, and having the contractor perform the actual search, to avoid giving the police free reign to view whatever files they like.”
Gilbert said, “From Washington, D.C., where Congress is updating decades-old laws about e-mail privacy, all the way to Vermont, courts and policy-makers are getting the message that privacy matters. This decision is a very positive result for personal privacy.”
A copy of the court’s decision is available on the ALCU-VT Web site at http://bit.ly/UGbRis
So the balance wavers but continues: public records should be public; our private, non-offending lives are private and not a pond for police to go fishing in.
Now, if we could just get the legislature to stand firm on not allowing the police warrantless access (i.e., fishing) to the prescription drug database!