Colorado Supreme Court’s Decision on Reverse Keyword Warrants Sparks Privacy Concerns

In State v. Seymour, the Colorado Supreme Court recently addressed the constitutionality of reverse keyword warrants, which has significant implications for electronic discovery (ediscovery), according to an article by Kelly Twigger on the ACEDS blog. The case centers around a criminal investigation into an arson incident, where law enforcement sought information from Google regarding users who had searched a specific address within 15 days before the crime. The court’s decision has broader implications for privacy, search and seizure, and electronic evidence, impacting both criminal and civil proceedings.

The court recognized the sensitive nature of individuals’ online search histories, acknowledging that such data can reveal intimate details about a person’s private life. The court’s analysis highlighted the divergence between the Colorado Constitution and the Fourth Amendment of the U.S. Constitution. While federal cases often argue that individuals lack privacy rights in data shared with third parties, the Colorado Constitution, interpreted to offer greater protections, led the court to conclude that individuals do have a reasonable expectation of privacy in their Google search history under Article Two Section 7.

The court emphasized the possessory interest individuals have in their search history, asserting that law enforcement’s copying of this data constitutes a seizure subject to constitutional protection. This ruling sets a precedent for acknowledging the constitutional rights individuals have in their digital footprints.

Despite concerns raised about probable cause and the constitutionality of the search, the court invoked the good faith exception to the exclusionary rule. The court determined that, until this ruling, there was no established precedent regarding the constitutionality of individuals’ privacy interests in Google search history, justifying law enforcement’s reliance on the warrants.

The decision carries implications for privacy and electronic evidence in both criminal and civil cases. Twigger highlighted the significance of the Colorado Supreme Court’s decision is that it diverges from Fourth Amendment principles by not addressing the constitutionality of reverse keyword warrants. The potential impact on civil discovery remains uncertain, but the ruling underscores the increasing challenges to privacy in the evolving landscape of electronic discovery and the use of electronically stored information (ESI).