Miller vs. Gunwall

Written by Doug Klunder
As I mentioned previously, Washington State's Constitution is far more privacy-protective than the United States Constitution, and now I'd like to delve into that a little deeper, especially in light of recent decisions by the state Supreme Court. Historically, two cases illustrate a major point of divergence between the federal and state constitutions, the treatment of personal information held by a third party: United States v. Miller and State v. Gunwall.

In Miller, a prosecutor investigating a moonshine operation requested the suspect's financial records from his bank, without getting a warrant or other judicial authorization. The Supreme Court held that Miller's records were not protected by the Fourth Amendment. Because Miller had voluntarily given this information to a third party (his bank), he no longer had a reasonable expectation of privacy in them: "The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government."

This principle has since been applied to a variety of other records, including information about telephone numbers dialed (Smith v. Maryland). In fact, the Miller decision can be seen as the impetus for much of our federal statutory privacy protection, as Congress needed to step in to recognize privacy where the Supreme Court had declined to do so. For example, the Right to Financial Privacy Act was a specific response to Miller, and limits on pen registers were enacted as part of the Electronic Communications Privacy Act subsequent to Smith v. Maryland.

Fortunately for Washington residents, our state Supreme Court has taken a much different view of privacy under our state constitution. Gunwall was a direct repudiation of Smith v. Maryland, holding that the Washington Constitution requires "authority of law" before using a pen register or obtaining other telephone records. Implicit in the decision was also a rejection of Miller, and instead a recognition that participation in modern society inevitably means the sharing of some information with third parties - and Washingtonians need not choose between modern society and privacy.

For the past 20 years, we've operated under this understanding, but the state Supreme Court had not revisited the issue, or determined which types of records retained a privacy interest when held by a third party. (There was one confusing set of decisions involving electricity records, which didn't have a clear holding.) Recently, however, the court decided a pair of cases that reaffirmed our state's commitment to privacy in a modern society.

The issue in State v. Miles was virtually the same as decided 30 years ago in Miller, warrantless access to bank records without notice to the customer. (Although federal statute now prevents federal law enforcement access to bank records without notice to the customer, that statute does not apply to state law enforcement, so the issue was still "live" in Washington.) Our court immediately recognized that the records weren't protected by the federal constitution due to Miller but proceeded to unanimously recognize that our state constitution does protect those records. The sensitivity of financial records is, of course, obvious. The court reaffirmed the Gunwall holding that entrusting a third party with information, necessary in today's society, does not forfeit one's privacy rights.

On the same day, the court held that the state constitution prohibits a random, warrantless search of hotel records by law enforcement, in State v. Jorden. The court recognized that hotel guest registers "may indeed provide intimate details about a person's activities and associations." And, as in Gunwall and Miles, revealing that information to a third party doesn't forfeit privacy. Perhaps the most heartening aspect of the opinion was the fact the court didn't even feel the necessity to explain that, or even cite Gunwall for the proposition. Instead, it's now just a universally accepted part of our state constitutional law that privacy is retained while participating in society.

The upshot is that Washingtonians can feel relatively secure in their privacy while going about normal daily life. But when you step outside the state or are involved with federal authorities, your privacy is at risk whenever you deal with a third party (including banks, hotels, telephone companies, ISP's, etc.) - at least until Miller is overturned or in specific areas where Congress chooses to offer protection.