Privacy and property are two elements of liberty that cannot be disconnected under the law. Because both are constitutionally protected rights, entering a person’s home or searching through their possessions without consent requires judicial permission. A warrant requirement may have sufficiently protected privacy in the past, but times have quickly changed.
It is now easier than ever to obtain a warrant; judges and police officers can quickly communicate electronically, day or night. But this convenience comes with a clear cost: there is little accountability to ensure that warrants are properly read and reviewed by judges before receiving approval. One analysis found that more than half of the warrants in Utah were approved in under 10 minutes; two dozen were approved in less than one minute. Can a person realistically read — and studiously consider — several pages of information in so short an amount of time?
Technology is phenomenal, but without correct measures in place, it may be contributing toward the erosion of our freedom. Another example comes from the recently concluded legislative session.
House Bill 260, sponsored by Rep. Ray Ward, would have allowed peace officers easier access to private medical records stored in the state’s controlled substance database. The bill eliminated the warrant requirement, opening the door for law enforcement to engage in fishing expeditions in an attempt to catch people in wrongdoing. The bill was voted down in the Senate.
House Bill 43 required that consent, a warrant, or a judicially recognized exception to a warrant be obtained before an officer may demand a blood draw. Sponsored by Rep. Craig Hall, this bill was a response to an alarming incident at the University of Utah when nurse Alex Wubbels was arrested for refusing to draw the blood of an unconscious patient for a police officer. The bill passed through the Legislature unanimously, thus affirming support for judicial review — even if said review takes mere minutes.
Rep. Hall also attempted to pass House Joint Resolution 9, which would have amended the Utah Constitution to specify that electronic data is protected from unreasonable searches and seizures, just as physical property clearly is. Peace officers would be required to obtain a warrant before gaining access to anyone’s cellphone or email records, for example. While some argue the warrant requirement already applies to electronic data, enough judges and prosecutors disagree to justify making it explicitly clear in the Constitution. Unfortunately, the bill did not make it out of its first committee hearing.
What if electronic data is given to police by a private company, such as one’s cellular service provider? Is that a violation of individual privacy, or is it permissible to obtain any data held by a third party without having to get a warrant? With Carpenter v. U.S. awaiting a decision by the U.S. Supreme Court, we will soon have an answer as to whether this information is legally protected under warrant requirements. However the court decides, the Legislature should be proactive in protecting your privacy — whether you possess it yourself, or have provided it to a third party.
While extremely important to clarify what property is protected under a warrant requirement, that step is rather superficial unless proper steps are taken to ensure judges are carefully and cautiously reviewing officer requests. Many warrants have been “rubber stamped” for approval — a major problem considering that some warrants allow for extremely intrusive service methods such as no-knock forcible entries in the middle of the night.
Rep. Marc Roberts attempted to address this issue with House Bill 83, which would have added regulations to ensure that search warrants are served on the correct house, during a proper time of day, and only when an executive officer analyzed the forcible entry request using a threat assessment matrix to ensure the high level of force was justified based on the circumstances. These simple steps would have given Utahns more protection from unreasonable government invasions, but this legislation unfortunately did not receive a vote in the Senate before the session ended.
Looking to the future, policymakers need to have a frank discussion as to whether the judicial review process is truly sufficient to protect our rights. Requiring further analysis before warrants are sent to judges, or adding transparency measures on the part of the courts are simple solutions that could help. Whatever the response, this problem must be addressed — our privacy is at stake.
Molly Davis is a policy analyst at Libertas Institute.