State v. De Witt Simons

Summary

The Oregon Supreme Court held that accessing the internet through a public Wi-Fi network does not eliminate a person’s privacy right under Article I, section 9, of the Oregon Constitution. It further held that terms-of-service provisions did not eliminate that right and that the coordinated, year-long monitoring of the defendant’s internet activity by the Wi-Fi provider and law enforcement constituted state action and a search. Because the state obtained no warrant and did not establish a warrant exception, the court reversed the Court of Appeals in part, reversed the circuit court’s judgment, and remanded.

Holdings

1. The mere fact that a person accesses the internet through a public Wi-Fi network operated by a third party does not eliminate the person's Article I, section 9, right to privacy in internet browsing activities.
2. Terms-of-service provisions informing a public Wi-Fi user that the provider may monitor network activity or cooperate with law enforcement do not, by themselves, eliminate the user's Article I, section 9, privacy right in internet browsing activity.
3. A&W's owner and consultant acted as state agents during the year-long monitoring period because law enforcement directed and supported their information-gathering activities.
4. The state-affiliated, year-long surveillance of defendant's internet activities invaded a protected privacy interest and constituted a search under Article I, section 9. Because the state obtained no warrant and did not establish an applicable warrant exception, the trial court erred in denying the motion to suppress.

Questions Presented

1. Whether a person retains a privacy right under Article I, section 9, of the Oregon Constitution in internet browsing activity conducted through a publicly accessible third-party Wi-Fi network.
2. Whether terms-of-service provisions notifying users that the network provider may monitor activity and cooperate with law enforcement eliminate the user's Article I, section 9, privacy right.
3. Whether the coordinated year-long monitoring by A&W and law enforcement constituted state action.
4. Whether the warrantless monitoring constituted a search under Article I, section 9, and whether the state established an exception to the warrant requirement.

Disposition

reversed_and_remanded