ACLU Urges Pa. Supreme Court Not to Affirm Ruling in Rapist Case

Internet searches can reveal a user’s “medical diagnoses, religious beliefs, financial stability, sexual desires, relationship status, family secrets, political leanings, and more,” so it’s “reasonable for the public to expect that their privacy and confidentiality are constitutionally protected,” said the American Civil Liberties Union in a news release Wednesday publicizing its Pennsylvania Supreme Court amicus brief (docket 98 MAP 2023). Other amici on the brief, filed Wednesday, are the ACLU of Pennsylvania, Library Freedom Project, Association of Research Libraries, Freedom to Read Foundation and Internet Archive.

The brief is in support of plaintiff-appellant John Kurtz, a convicted rapist, who is appealing whether a Pennsylvania intermediate appellate court erred in concluding an individual doesn’t have a reasonable expectation of privacy in internet search inquiries. Kurtz was convicted in April in Pennsylvania Superior Court for kidnappings, rapes and attempted kidnappings of five victims within Northumberland, Montour and Columbia counties between November 2012 and April 2017. Police used Kurtz’s Google Search history to link him to the victims.

Police obtained records “reflecting everyone who used Google’s Search tool to seek information related to a particular word or phrase -- in this case, a home address -- within a defined time period,” said the brief, calling the “reverse search” a “novel surveillance technique.” 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,” it said. Though the technique identifies suspects, it also “traps countless innocent people in its net,” it said.

The lower court approved a reverse search seeking Google Search history records that would reveal anyone who searched for a particular address during a particular time period, the brief said. “It concluded that no individual maintains a reasonable expectation of privacy at all in any query they enter into a search engine -- whether it’s an address, a name, a topic, or an idea,” the brief said. If that view is upheld, police would have “unfettered access to the thoughts, feelings, concerns, and secrets of countless people, simply because they enter those thoughts, feelings, concerns, and secrets into third-party-operated search engines that have become indispensable features of modern life,” said the brief.

Pennsylvania, like most states, requires a court order before libraries can disclose patrons’ records, said the brief. A situation that would allow law enforcement to obtain a court order for library records is one involving “probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology,” it said.

Internet users get the most useful search results “by revealing detailed sensitive information about themselves” that is typically retained by search engines in order to generate “use-specific results,” said the brief. By default, Google retains such data for 18 months, the brief said. While internet search histories are similar to patrons’ library records, law enforcement access to them “is a far greater privacy invasion,” it said.

A user’s search for medical information could lead someone to seek life-saving care, but it also creates “a deeply revealing digital trail,” said the brief. A patron could ask a librarian for a book on healthcare to learn about a condition, but the interaction wouldn’t have a written record, the brief noted. An internet search about a missed menstrual period, however, will leave “an unmistakable” digital trail that could be used in a state where abortion is a crime, it said. Under the lower court’s reasoning,“investigators could warrantlessly demand that Google identify everyone who searched for 'Planned Parenthood,'”it said.

Internet users expect that their search queries are private, said the brief. Google, which police searched to identify Kurtz, pledges in its privacy policy that it doesn’t share personal information outside of the company. It requires a “specific and narrowly tailored warrant or order for it to reveal information connected to the alleged crime under investigation,” said the brief.

Warrant requirements of the Stored Communications Act “support a conclusion” that people reasonably expect their search histories to be treated as private, said the brief, noting it prohibits providers of electronic communications services from voluntarily providing contents of such communications to the government. No courts have held that law enforcement may constitutionally acquire noncontraband digital contact without a warrant under the SCA, it said.

The court can resolve the Kurtz case under the Pennsylvania Constitution, but the Superior Court’s ruling “also runs afoul of the Fourth Amendment because it overextends the federal third-party doctrine as recently narrowed” by the U.S. Supreme Court, said the brief. The brief cited U.S. v. Carpenter and U.S. v. Jones, where SCOTUS sought to assure preservation of privacy against government that existed when the Fourth Amendment was adopted.

SCOTUS distinguished cellphone location information from “traditional law enforcement surveillance on the basis of ‘the retrospective quality of the data’ which ‘gives police access to a category of information otherwise unknowable,’” the brief said, referring to Carpenter. That reasoning “applies even more strongly to search history records,” where phone and internet searches are “indispensable to participation in modern society,” it said.

If affirmed by the Pennsylvania Supreme Court, the lower court’s reasoning on government acquisition of individuals’ search queries “would undermine fundamental privacy protections in communication media used by nearly all Americans and disrupt current established practice for access to personal information stored online, including search histories," the brief said. "This Court should reverse the lower court and hold that search history data is protected by the state and federal Constitutions," it said.