HARRISBURG, Pa. — On behalf of librarians and librarian-led organizations, the American Civil Liberties Union and the ACLU of Pennsylvania filed a friend-of-the-court brief today in Pennsylvania v. Kurtz, a case in front of the Pennsylvania Supreme Court that involves a novel and legally untested surveillance technique known as a “reverse search” warrant. In the brief, the groups assert that search histories can and must be protected under the Fourth Amendment and the Pennsylvania Constitution.
The groups’ brief explains that library patron records are treated as private under every state law and by professional practice. The brief argues that the target of this “reverse” warrant — internet search histories — are even more sensitive and revealing. As the brief explains, internet searches can reveal the user’s medical diagnoses, religious beliefs, financial stability, sexual desires, relationship status, family secrets, political leanings, and more. So it is reasonable for the public to expect that their privacy and confidentiality are constitutionally protected.
“A core value of librarians is that people should be able to access the information that they need safely and freely,” said Alison Macrina, the founder of the Library Freedom Project. “Protecting patrons’ privacy is essential to achieving that goal, which is why libraries have implemented practices and fought for policies to protect that privacy. The internet is history’s largest library and the public generates far more sensitive access records than in traditional libraries. That is why it is extra important to protect the privacy of these access records — no one should be looking at them without good cause and due process.”
Reverse search warrants give the police access to records reflecting everyone who used a search engine, such as Google, to seek information related to a particular word or phrase — in this case, a home address — within a defined time period. Instead of seeking information about an identified suspect, a reverse search seeks to identify suspects by demanding that a company comb through its huge repository of data reflecting the public’s interactions with its services. Even when it identifies suspects, this technique traps countless innocent people in its net.
In Kurtz, a lower court concluded that people do not have a reasonable expectation of privacy at all in any query they enter into a search engine. The ACLU’s amicus lays out how letting this decision stand would provide the police with unfettered access to the thoughts, feelings, concerns, and secrets of countless people, simply because they use the search engines that have become indispensable features of modern life to investigate those private matters.
“The intermediate court’s ruling is dangerously wrong,” said Jennifer Granick, surveillance and cybersecurity counsel with the ACLU’s Speech, Privacy, and Technology Project. “Our private thoughts and concerns should remain private, even or especially when we research those concerns online. If police could access your search history without any justification, people would be afraid to search the internet for information about our health conditions, religious questions, political concerns, sexual questions. This privacy invasion would also interfere with our First Amendment rights to access information available to us over the internet.”