Utah Proves to Washington, D.C., that Surveillance Reform Can Work

​This year, the coalition of surveillance reformers in Washington, D.C., mounted the most spirited, bipartisan campaign in legislative history.
 
The reform coalition fought to require warrants for FISA Section 702, which authorizes the government to surveil foreign threats on foreign soil but is often used to spy on Americans. The House also passed the Fourth Amendment Is Not For Sale Act, which would forbid the warrantless collection of Americans’ personal, digital information.
 
How did we do? The Section 702 fix was lost to a single, tie-breaking vote in the House. The Fourth Amendment Is Not For Sale Act remains stuck behind last-minute business in the Senate.
 
It is easy for surveillance reformers to feel like Sisyphus, rolling legislative stones up Capitol Hill only have them come tumbling back down. But national reformers should take heart from the example set by Utah, which proves that surveillance reform is popular and that reasonable compromises can be set into law.
 
Start with geofence warrants, which use a reverse search technique to pluck the identities of criminal suspects out of pools of data extracted from a given area. The federal Fifth and Fourth Circuit Courts of Appeal have taken starkly opposite views over whether geofence warrants can be allowed. The Fifth Circuit finds them to be inherently unconstitutional. The Fourth Circuit finds them to raise no Fourth Amendment issues at all.
 
Meanwhile, the intrusion of government snooping grows. Google reports that requests for geofence warrants grew by 9,000 in 2019 to 11,500 in 2020. That number is surely much higher today.
 
When the U.S. Supreme Court inevitably wades into this issue to resolve the circuit split, the Justices would well to consider the example set by Utah. Last year, Utah passed HB57, which balances law enforcement’s protection of public safety with the privacy rights of Utahans in law enforcement’s use of geofencing.
 
Leslie Corbly of the Libertas Institute in Utah reports that as a result of this new law, police must now submit requests for geofence data to a judge for a warrant application. This new law also mandates that warrant applications must “include a notification to judges regarding the nature of a geofence search by way of a map or written description showing the size of the virtual geofence.” Results from the search must be specified and reported to the court, including not just the identification of criminal perpetrators, but also people not involved in a crime.
 
Armed with enough information to evaluate the merits of a warrant request, judges remain involved with geofence warrants throughout the process. Finally, state law enforcement agencies must report the number of geofence warrants requested, the number approved by a judge, the number of investigations that used information obtained through a geofence warrant, and the number of electronic devices used for this collection.
 
Mike Maharrey of the Tenth Amendment Center reports that Utah has “chipped away at the surveillance state,” passing laws limiting surveillance of all kinds. These include:
 

• License Plate Readers: In 2013, Utah put modest limits on Automatic License Plate Readers, keeping this data out of the market for digital information and a requirement for a warrant or disclosure order for state police to access it.

 

• Warrants for Data: Utah’s 2014 Electronic Information Privacy Act makes any electronic data obtained by law enforcement without a warrant inadmissible in a criminal trial. In addition to state-collected information, that law imposes the same constraint on data derived from the NSA and super-secret fusion centers. In 2019, Utah expanded this law to ban warrantless access to data stored in the cloud. In 2021, the state again expanded this law to require police to get warrants to search data held by communication service provider networks.

 

• Drones: In 2014, Utah slapped a search warrant requirement on data obtained from a drone. In 2022, the state expanded restrictions on drone surveillance to also include “radar, sonar, infrared, or other remote sensing or detection technology.”

 

• Geofencing: And then in February 2023, Utah passed its limits and warrant requirements on geofencing.

 
Utah demonstrates to Congress and the Supreme Court that we can place limits on surveillance while accepting reasonable access to information agencies need to protect the public. Gary Herbert, a former governor of Utah who signed many of these measures into law, said “Utah is no longer a flyover state.” When it comes to surveillance reform, Utah is a state that should lead the nation.
 
And Utah should be an inspiration to reformers in Congress to keep pushing those boulders all the way to the top of the Hill.