On July 30, 2019, the Arizona Court of Appeals in State of Arizona v. Mixton, No. 2 CA-CR 2017-0217, held that obtaining an IP address and subscriber information through an administrative subpoena rather than obtaining a warrant based upon probable cause (some criminal activity) violates the right to be free from governmental interference in private affairs under article II, § 8 of the Arizona Constitution. In other words, internet users have a reasonable expectation of privacy in the information they provide to internet providers, including their name and home address.
The Court of Appeals ruling is different from that of prior federal court rulings where the federal courts have held that the Fourth Amendment of the US Constitution does not protect information provided to an internet service provider.
Comparing the Court of Appeals holding with the prior federal court holdings demonstrates some pushback by the AZ Court of Appeals in that the majority is not willing to give unfettered discretion to the government to peek into our personal affairs when it comes to our use of the internet. The Court of Appeals supported this decision by demonstrating how subscriber information pertains to freedom of association and free speech.
More specifically, the defendant in Mixton was charged with Sexual Exploitation of a Minor based on child pornography images found on his electronics. Facts material to the decision were that federal agents were conducting a sting operation and posted an ad in a group chat requesting images of child pornography. Using an anonymous screenname, Mixton allegedly posted an image in that chatroom. Federal agents contacted the chatroom company through the use of an administrative subpoena and obtained the defendant’s IP address. Agents then obtained the identifying and contact information of the user assigned to that IP address via another subpoena, and then obtained a search warrant for the defendant’s home. During the execution of the warrant, agents discovered several devices, including a cell phone, containing child pornography. Mixton thereafter argued that his Fourth Amendment rights and his rights protected by Article II, § 8 of the Arizona Constitution were violated because he had a reasonable expectation of privacy in his subscriber information. The trial court denied the motion, holding that Mixton had no privacy interest in his subscriber information.
On appeal, however, the Court of Appeals held that the Arizona Constitution is more protective of privacy rights than the Federal Constitution, and citizens do have a privacy interest in their internet subscriber information, and that obtaining IP addresses and subscriber contact information via administrative subpoenas rather than a warrant was in violation of Article II, § 8 of the Arizona Constitution. The Court in Mixton came to this decision by declining to apply the federal third-party-doctrine to the Arizona Constitution which stands for the proposition that there could never be a reasonable expectation of privacy in information provided to a third party (i.e.an internet subscribers contact information provided to the internet company used). The Mixton Court emphasized that technology is changing, and to allow the government to access subscriber information without a warrant is tantamount to allowing a search “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.” This is because of the myriad of activity and day-to-day life that is conducted online and through the internet. The Appellate Court also emphasized that allowing the State to bypass the warrant requirement has the effect of chilling free speech by showing who a person communicates with online and about what topics.
Notwithstanding the Appellate Court’s holding in Mixton, the Appellate Court nevertheless determined that the Good Faith Exception should apply to Mixton’s case due to the fact that the agents ultimately obtained the incriminating information from him through a valid search warrant served on his house.
Stay tuned for the Arizona Supreme Court to resolve this discrepancy.