Electronic Privacy Amendment May Have Broad Implications for Use of Digital Information

This summer, Missouri voters approved an amendment to the Missouri Constitution protecting electronic data from searches and seizure by law enforcement officers.

Article I, Section 15 of the Missouri Constitution closely resembles the Fourth Amendment to the Federal Constitution: both provide that the people shall be “secure in their persons, papers, homes and effects from unreasonable searches and seizures,” and that law enforcement must demonstrate probable cause before obtaining a search warrant. The recent amendment modifies Section 15 so that it now explicitly protects “electronic communications and data” and requires police to “describe the data or communication to be accessed as nearly as may be” when applying for a warrant.

Surprisingly, the amendment might have ripple effects far removed from searches conducted by law enforcement.

The Fourth Amendment is an excellent example of how the Constitution must adapt to technologies that are constantly evolving and changing. When James Madison drafted what is now known as the Fourth Amendment over 200 years ago, his thinking was probably limited to searches of homes, desk drawers and notebooks.

Today, law enforcement officials regularly search laptops, hard drives, cell phones, text messages, social media accounts and many other types of data. Without any guidance in the text of the Constitution as to how electronic information should be treated under the Fourth Amendment, the courts have had to address these issues largely on their own.

Recent decisions show a clear trend towards granting broad Fourth Amendment protection to conversations conducted electronically:

• In 2010, the United States Court of Appeals for the Sixth Circuit held that law enforcement cannot retrieve copies of email messages from an internet service provider without first obtaining a warrant. United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010).
• Relying partly on Warshak, the Missouri Court of Appeals extended similar protection to sent and received text messages saved on an individual’s cell phone in 2012. State v. Clampitt, 364 S.W.3d 605, 611 (Mo.App. W.D. 2012).
• Earlier this year, the Washington Supreme Court held that a law enforcement officer violated the Washington State Constitution when he seized a cell phone following a drug arrest and saw an in-progress text message conversation with a potential buyer. The officer continued the conversation himself, pretending to be the owner of the phone, and set up a meeting with the buyer, who was later arrested. Some commentators were surprised by this ruling because it held that the buyer’s constitutional rights were implicated when the police seized someone else’s cell phone, not the buyer’s own cell phone. See State v. Hinton, 319 P.3d 9, 14-15 (Wash. banc 2014).

Consequently, Missouri’s new electronic privacy amendment may not have changed the law all that much. The numerous recent decisions upholding citizens’ rights to be free from unreasonable searches of e-mail, text messages and other electronic data suggest that the amendment simply reinforces the law as it stands.

Public Policy and Contract Interpretation

But the amendment may also have an impact on the interpretation of private contracts. Even though Article I, Section 15 of the Missouri Constitution applies only to law enforcement officers, all contracts are interpreted on the backdrop of the law existing at the time the contract was written. Courts sometimes hesitate to give a contract an interpretation that may be contrary to the public policy of the state, and the electronic privacy amendment has now enshrined in our Constitution an individual’s right to privacy in digital data. It is very possible that the amendment will make the courts more likely to resolve contract disputes relating to electronic privacy in favor of the owner of the data.

One area in which the amendment could have an impact is employment contracts. It is quite common for employees to use an employer’s computers and networks to store or transmit sensitive personal information, including banking information and conversations with friends and family members. If the employment agreement or employee handbook is vague or silent as to whether the employer has a right to retain or search this information, courts now have one more reason to find in favor of the employee.

Online businesses that store potentially sensitive user data should also be on the lookout. It is common for companies to want to use their customers’ information for marketing reasons, but if the website’s terms of service are unclear as to whether users should expect that the company will treat user data as private, the company might be found in breach of contract for making commercial use of that data.

As cultural attitudes and public policy change, so does the interpretation of private contracts. What may have seemed reasonable ten years ago might be considered unfair or even unconscionable today. Missouri voters have decided that citizens have a constitutional right to privacy in their electronic data, and at the end of the day, that rule may apply not only to the police, but to employers and websites as well.

The principles governing use of digital information will continue to evolve for years to come, but now is a good time to remember perhaps the most important rule of contract drafting: when in doubt, spell it out.