Effective this week, law enforcement in Utah will need a search warrant to obtain for certain electronic records. The new state legislation looks to expand privacy protections for content that consumers store online. Generally, the third-party doctrine limits the protection this type of information receives under Fourth Amendment protections against unreasonable searches and seizures. The rationale being that individuals have already voluntarily disclosed this information to the service provider and, thus, have no reasonable expectation of privacy in that information. This new law seeks to chip away at the third-party doctrine, as consumers are putting more and more of their personal information online in the hands of service providers with the expectation that the information to stay private. What this means in practice is that state and local law enforcement in Utah will need to meet a greater burden of proof to access this content. If you are a service provider, you may want to take another look at any legal process you receive from Utah law enforcement. The legislation does leave several exceptions to the new warrant requirement, including the ability for providers to voluntarily release information to law enforcement in certain circumstances and to allow for subpoena requests from law enforcement for a “subscriber record.”
Putting it Into practice: ISPs and those who receive requests from law enforcement for electronic records should keep in mind the new restrictions under this Utah law.