While the Fourth Amendment’s third party doctrine does not recognize a reasonable expectation of privacy in IP information, the court concludes that the state constitution does (and it follows several other states rejecting Miller and Smith on some basis). State v. Mixton, 2019 Ariz. App. LEXIS 708 (July 30, 2019) (we can expect the Arizona Supreme Court to resolve this):
P25 Many states have refused to adopt the third-party doctrine established in Miller and Smith under their state constitutions, concluding that people do have a reasonable expectation of privacy in information they must furnish to companies providing banking, phone, and internet service in order to use those services. See, e.g., People v. Chapman, 36 Cal. 3d 98, 201 Cal. Rptr. 628, 679 P.2d 62, 67 n.6 (Cal. 1984) (rejecting the “fiction” in Miller and Smith that a person has no reasonable expectation of privacy in bank or phone call records); People v. Sporleder, 666 P.2d 135, 141-42 (Colo. 1983) (rejecting Smith and finding reasonable expectation of privacy in phone numbers dialed); Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117, 1120-21 (Colo. 1980) (rejecting Miller in construing state constitution’s search-and-seizure provision); Shaktman v. State, 553 So. 2d 148, 151 (Fla. 1989) (person has reasonable expectation of privacy in phone number dialed); State v. Walton, 133 Haw. 66, 324 P.3d 876, 906 (Haw. 2014) (Miller and Smith “incorrectly rely on the principle that individuals who convey information to a third party have assumed the risk of that party disclosing the information to the government. In our times individuals may have no reasonable alternative.”); State v. Thompson, 114 Idaho 746, 760 P.2d 1162, 1165 (Idaho 1988) (“[I]n Idaho there is a legitimate and reasonable expectation of privacy in the phone numbers that are dialed.”); People v. DeLaire, 240 Ill. App. 3d 1012, 610 N.E.2d 1277, 1282, 183 Ill. Dec. 33 (Ill. App. 1993) (“We believe that citizens have a legitimate expectation that their telephone records will not be disclosed.”); Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283, 1289 (Pa. 1979) (“As we believe that Miller establishes a dangerous precedent, with great potential for abuse, we decline to follow that case when construing the state constitutional protection against unreasonable searches and seizures.”); State v. Thompson, 810 P.2d 415, 418 (Utah 1991) (rejecting Miller). But see State v. Clark, 232 W. Va. 480, 752 S.E.2d 907, 921 n.13 (W. Va. 2013) (declining to depart from Smith and citing cases in eight states that follow Miller and Smith).
. . .
P27 For similar reasons, we conclude that internet users generally have a reasonable expectation of privacy in their subscriber information. We therefore join the several other states that have declined to apply the federal third-party doctrine established in Miller and Smith under their state constitutions in circumstances analogous to those before us. In the internet era, the electronic storage capacity of third parties has in many cases replaced the personal desk drawer as the repository of sensitive personal and business information—information that would unquestionably be protected from warrantless government searches if on paper in a desk at a home or office. The third-party doctrine allows the government a peek at this information in a way that is the twenty-first-century equivalent of a trip 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. Cf. Riley v. California, 573 U.S. 373, 393-95, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014) (discussing how mass transition from paper data storage to digital data storage has increased privacy interests in cell phones). We doubt the framers of our state constitution intended the government to have such power to snoop in our private affairs without obtaining a search warrant.P28 The state rests its argument in favor of the third-party doctrine on the rationales from Smith: It argues the information at issue here was “non-content” information that Mixton voluntarily submitted to the third-party service providers. But information that has been deemed as “non-content,” such as a person’s bank records, who a person calls or emails, what websites a person visits, or, as here, the identity behind anonymous communications, is part and parcel of a person’s private affairs; access to it affords the government significant insight into a person’s private activities and beliefs. Warrantless government collection of this information from an internet service provider or similar source thus constitutes a significant and unwarranted intrusion into a person’s private affairs—an intrusion our constitution unambiguously prohibits. And we are not persuaded that a person gives up any reasonable expectation of privacy in this information because he or she “voluntarily” reveals his or her identity to an ISP to get service. The user provides the information for the limited purpose of obtaining service. It is entirely reasonable for the user to expect the provider not to exceed that purpose by revealing the user’s identity to authorities in a way that connects it to his or her activities on the internet. Therefore, when the government compels the provider to release the internet user’s identity in that way, and without a warrant, it invades the user’s reasonable expectation of privacy.
P29 We are especially troubled that the third-party doctrine grants the government unfettered ability to learn the identity behind anonymous speech, even without any showing or even suspicion of unlawful activity. An author’s decision to remain anonymous, whether “motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible,” “is an aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341-42, 357, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995) (striking down state statute outlawing anonymous political leaflets). Even in benign exercise, the government’s ability to identify anonymous speakers, if not meaningfully limited, intrudes on the speaker’s desire to remain anonymous and may discourage valuable speech. At worst, the power may be wielded to silence dissent.
P30 Even if the government obtains nothing more without a warrant than basic identifying information connected to specific internet activity, other cherished rights are endangered. The right of free association, for example, is hollow when the government can identify an association’s members through subscriber information matched with particular internet activity. The importance of privacy in one’s associations is illustrated by NAACP v. Alabama, in which the Court ruled that the state could not compel the NAACP to produce the names and addresses of its members even with a court order, ruling that the compelled disclosure violated the members’ freedom of association. 357 U.S. 449, 453, 466, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). …
