IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

WILLIAM MIXTON,

Appellant.

No. CR-19-0276-PR

Filed January 11, 2021

Appeal from the Superior Court in Pima County

The Honorable Sean E. Brearcliffe, Judge

No. CR20162038-001

AFFIRMED

Opinion of the Court of Appeals, Division Two

247 Ariz. 212 (2019)

VACATED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Brunn “Beau” W. Roysden III, 

Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals 

Section, Linley Wilson (argued), Deputy Solicitor General, Phoenix, 

Attorneys for State of Arizona

Joel Feinman, Pima County Public Defender, Abigail Jensen (argued), 

David J. Euchner, Deputy Public Defenders, Tucson, Attorneys for William 

Mixton

Timothy Sandefur, Scharf-Norton Center for Constitutional Litigation at 

the Goldwater Institute, Phoenix, Attorney for Amicus Curiae Goldwater 

Institute

Paul V. Avelar, Timothy D. Keller, Keith E. Diggs, Institute for Justice, 

Tempe, Attorneys for Amicus Curiae Institute for Justice

Elizabeth Burton Ortiz, Arizona Prosecuting Attorneys’ Advisory Council, 

Phoenix, Attorney for Amicus Curiae Arizona Prosecuting Attorneys’

Advisory Council
STATE V.MIXTON

Opinion of the Court

2

Jared G. Keenan, American Civil Liberties Union Foundation of Arizona, 

Phoenix, Attorney for Amici Curiae American Civil Liberties Union of 

Arizona, American Civil Liberties Union, and Electronic Frontier 

Foundation

JUSTICE LOPEZ authored the opinion of the Court, in which JUSTICES 

GOULD, BEENE, and MONTGOMERY joined. JUSTICE BOLICK, joined 

by CHIEF JUSTICE BRUTINEL and VICE CHIEF JUSTICE TIMMER,

dissented.

JUSTICE LOPEZ, opinion of the Court:

¶1 We consider whether the Fourth Amendment to the United 

States Constitution or article 2, section 8 of the Arizona Constitution 

requires law enforcement officials to secure a judicially-authorized search 

warrant or order to obtain either (1) a user’s Internet Protocol (“IP”) address 

or (2) subscriber information the user voluntarily provides to an Internet 

Service Provider (“ISP”) as a condition or attribute of service. We hold that 

neither the federal nor the Arizona Constitution requires a search warrant 

or court order for such information and that law enforcement officials may 

obtain IP addresses and ISP subscriber information with a lawful federal 

administrative subpoena.

BACKGROUND

¶2 An ISP is a company that provides individuals with access to 

the internet. United States v. Jean, 207 F. Supp. 3d 920, 931 (W.D. Ark. 2016), 

aff’d 891 F.3d 712 (8th Cir. 2018). The ISP assigns a string of numbers, called 

an IP address, to a customer’s modem to facilitate access to the internet. Id. 

at 928. Consequently, a user does not control nor own an IP address. IP 

addresses are always attached, “like a ‘return address,’ to every ‘envelope’ 

of information exchanged back and forth by computers that are actively 

communicating with each other over the internet.” Id. at 928–29. When a 

computer accesses a website, the IP address tells the website where to 

transmit data. See Frederick Lah, Note, Are IP Addresses “Personally 

Identifiable Information”?, 4 I/S: J.L. & Pol’y for Info. Soc’y 681, 693 (2008). 

Search engines, such as Google, also log IP addresses of users and use these 
STATE V.MIXTON

Opinion of the Court

3

logs to improve the quality of search results and advertisements for

visitors. Id. at 693–94.

¶3 An IP address alone does not reveal an internet user’s 

identity. Rather, it generally reveals only a user’s approximate geographic 

location, such as a neighborhood, and the user’s ISP. Lincoln Spector, Your 

IP address: Who can see it and what you can do about it, PCWorld (Mar. 17, 2014,

7:15 AM), https://www.pcworld.com/article/2105405/your-ip-addresswho-can-see-it-and-what-you-can-do-about-it.html. The ISP, however, 

maintains records and information, such as the name, address, and 

telephone number associated with an IP address, known as “subscriber 

information.” See Savanna L. Shuntich & Kenneth A. Vogel, Doe Hunting: 

A How-to Guide for Uncovering John Doe Defendants in Anonymous Online 

Defamation Suits, Md. B.J. 48, 51 (July/Aug. 2017).

¶4 Here, in 2016, an undercover Tucson Police Department 

detective posted an advertisement on an online forum seeking users 

interested in child pornography. The detective was contacted by someone 

with the username “tabooin520,” who asked to be added to a group chat on 

a messaging application called “Kik.” Once added, tabooin520 sent images 

and videos of child pornography to the group chat and to the detective.

¶5 Federal agents with Homeland Security Investigations 

(“HSI”), at the request of the detective, served a federal administrative 

subpoena authorized under federal law on Kik to obtain tabooin520’s IP 

address. Kik provided the IP address to the detective. The detective, using 

publicly available databases, determined that Cox Communications 

(“Cox”) was the ISP for the IP address. HSI agents then served another 

federal administrative subpoena on Cox for the subscriber information 

associated with the IP address.

¶6 Cox complied with the subpoena, disclosing the subscriber 

information—name, street address, and phone number—of William 

Mixton. The detective used this information to obtain and execute a search 

warrant on Mixton’s residence. Detectives seized a cell phone, an external 

hard drive, a laptop, and a desktop computer. A subsequent search of these 

devices revealed photos and videos of child pornography, as well as the 

messages, photos, and videos that Mixton, under the username 

“tabooin520,” sent to the detective.
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¶7 Mixton was indicted on twenty counts of sexual exploitation 

of a minor under fifteen years of age. Mixton moved unsuccessfully to 

suppress the subscriber information and all evidence seized from his

residence on the grounds that the Fourth Amendment to the United States 

Constitution and article 2, section 8 of the Arizona Constitution require a 

warrant or court order to obtain his IP address and ISP subscriber 

information. A jury convicted Mixton on all counts, and he appealed.

¶8 In a split decision, the court of appeals affirmed Mixton’s 

convictions and sentences, holding that although Mixton lacked a 

reasonable expectation of privacy under the Fourth Amendment, State v. 

Mixton, 247 Ariz. 212, 220 ¶ 13 (App. 2019), the Arizona Constitution 

required a search warrant to obtain his ISP subscriber information, id. at 225 

¶ 27, and the federal third-party doctrine did not apply to the Arizona 

Constitution, id. at 227 ¶ 33. The court concluded that, although the State 

obtained Mixton’s ISP subscriber information in violation of the Arizona 

Constitution, suppression of the information was unnecessary because the 

good-faith exception to the exclusionary rule applied, as no precedent 

prohibited the search, controlling law deemed the search reasonable, and 

law enforcement reasonably relied on existing precedent. Id. at 228 ¶ 39.

¶9 On review in this Court, the State argues that article 2, section 

8 of the Arizona Constitution does not require a search warrant or court 

order to obtain IP addresses and ISP subscriber information. Mixton

disagrees and further contends that the Fourth Amendment protects IP 

addresses and ISP subscriber information in light of Carpenter v. United 

States, 138 S. Ct. 2206 (2018).

¶10 We granted review to consider whether the United States or 

Arizona Constitution requires a search warrant or court order to obtain IP 

addresses and ISP subscriber information, a recurring issue of statewide 

importance. We have jurisdiction under article 6, section 5(3) of the Arizona 

Constitution and A.R.S. § 12-120.24.

DISCUSSION

¶11 Whether the United States or Arizona Constitution requires a 

search warrant or court order to obtain an IP address and ISP subscriber 

information involves the interpretation of constitutional provisions, a 

matter we review de novo. See State v. Hegyi, 242 Ariz. 415, 416 ¶ 7 (2017).
STATE V.MIXTON

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5

I.

¶12 We consider first whether, in light of Carpenter, the United 

States Constitution requires a search warrant or court order to obtain an IP 

address and ISP subscriber information.

A.

¶13 The Fourth Amendment protects “[t]he right of the people to 

be secure in their persons, houses, papers, and effects, against unreasonable 

searches and seizures.” The Fourth Amendment was designed to protect 

individuals against “arbitrary invasions by governmental officials.” 

Carpenter, 138 S. Ct. at 2213 (quoting Camara v. San Francisco, 387 U.S. 523, 

528 (1967)). Traditionally, the Supreme Court viewed search and seizure 

under the Fourth Amendment through a lens of “common-law trespass.” 

See United States v. Jones, 565 U.S. 400, 405 (2012). However, the Court has 

recognized that the Fourth Amendment protects people, not just places, 

when an individual “seeks to preserve something as private” and that

expectation is “one that society is prepared to recognize as reasonable.” 

Carpenter, 138 S. Ct. at 2213 (quoting Smith v. Maryland, 442 U.S. 735, 740 

(1979)). “A ‘search’ occurs when an expectation of privacy that society is 

prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 

U.S. 109, 113 (1984).

B.

¶14 Federal appellate courts held uniformly, before Carpenter,that 

the Fourth Amendment does not protect IP addresses and ISP subscriber 

information because such information falls within the exception created by 

the “third-party doctrine.” See, e.g., United States v. Bynum, 604 F.3d 161, 

164 (4th Cir. 2010) (noting that every federal court considering this issue has

held that subscriber information provided to an internet provider is not 

protected by the Fourth Amendment); United States v.Perrine, 518 F.3d1196,

1204–05 (10th Cir. 2008)(collecting cases that hold the Fourth Amendment’s 

privacy expectation does not apply to IP addresses and ISP subscriber 

information); United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008) 

(holding that IP addresses and ISP subscriber information are not protected 

by the Fourth Amendment). The third-party doctrine is premised on the 

concept of privacy. Specifically, the doctrine is an analytical construct used 

to differentiate between information a person seeks to preserve as private,

and information that, because he shares it with others, is not treated as 
STATE V.MIXTON

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private. Using this construct, a person has no expectation of privacy in 

information he voluntarily discloses to third parties, even if there is an 

assumption it will be used only for a limited purpose. Carpenter, 138 S. Ct.

at 2216. And, because it is no longer private, the government may obtain 

such information from a third party without triggering the Fourth 

Amendment’s protections. Id.

¶15 The third-party doctrine traces its roots to United States v. 

Miller, 425 U.S. 435 (1976), and Smith v. Maryland, 442 U.S. 735 (1979). In 

Miller, the government subpoenaed a defendant’s bank for records,

including the defendant’s checks, deposit slips, and statements. 425 U.S. 

at 437–38. The Supreme Court held that those documents were business 

records of the bank; thus, the defendanthad no privacy interest in them. Id.

at 440.

¶16 In Smith, the Supreme Court held that a defendant did not 

have “a legitimate expectation of privacy regarding the numbers he dialed 

on his phone.” 442 U.S. at 742 (internal quotation marks omitted). The 

Court emphasized that customers knew they were conveying phone 

numbers to the telephone company and that the company could keep 

records of those phone calls. Id. It also reasoned that recording the 

numbers a customer dials does not convey the contents of the 

communication, thus distinguishing Katz v. United States, 389 U.S. 347 

(1967), which held that the warrantless monitoring of telephone 

conversations from a public telephone booth violated the Fourth 

Amendment. Smith, 442 U.S. at 741.

¶17 Thus, “Smith and Miller . . . did not rely solely on the act of 

sharing [information]. Instead, they considered ‘the nature of the particular 

documents sought’ to determine whether ‘there is a legitimate “expectation 

of privacy” concerning their contents.’” Carpenter, 138 S. Ct. at 2219 

(quoting Miller, 425 U.S. at 442). The Ninth Circuit has aptly described the 

de minimis privacy interests implicated in the non-content information 

generated by an IP address:

When the government obtains the to/from addresses of a 

person’s e-mails or the IP addresses of websites visited, it 

does not find out the contents of the messages or know the 

particular pages on the websites the person viewed. At best, 

the government may make educated guesses about what was 
STATE V.MIXTON

Opinion of the Court

7

said in the messages or viewed on the websites based on its 

knowledge of the e-mail to/from addresses and IP 

addresses—but this is no different from speculation about the 

contents of a phone conversation on the basis of the identity 

of the person or entity that was dialed. Like IP addresses, 

certain phone numbers may strongly indicate the underlying 

contents of the communication; for example, the government 

would know that a person who dialed the phone number of a 

chemicals company or a gun shop was likely seeking 

information about chemicals or firearms. Further, when an 

individual dials a pre-recorded information or subjectspecific line, such as sports scores, lottery results or phone sex 

lines, the phone number may even show that the caller had 

access to specific content information. Nonetheless, the Court 

in Smith and Katz drew a clear line between unprotected 

addressing information and protected content information 

that the government did not cross here.

Forrester, 512 F.3d at 510.

¶18 As with bank records and dialed telephone numbers, an 

internet user voluntarily provides subscriber information and IP addresses 

to third-party ISPs and servers. Subscriber information and IP addresses 

also do not reveal the substance or content of the internet user’s 

communication any more than the information affixed to the exterior of a 

mailed item. See Shuntich & Vogel, supra ¶ 3, at 51 (noting that 18 U.S.C. 

§ 2701 et seq. prohibits companies from disclosing “contents of a 

communication,” but they may turn over non-content information like IP 

addresses, phone numbers, and physical addresses in response to a 

subpoena); cf. Forrester, 512 F.3d at 511 (“In a line of cases dating back to the 

nineteenth century, the Supreme Court has held that the government 

cannot engage in a warrantless search of the contents of sealed mail, but can 

observe whatever information people put on the outside of mail, because 

that information is voluntarily transmitted to third parties.”).

C.

¶19 In Carpenter, decided nearly 40 years after Smith, officers 

accessed cellphone data, commonly known as cell-site location information 

(“CSLI”), to reveal a suspect’s movements over the course of 127 days. 138 

S. Ct. at 2217. CSLI is generated by a cellphone whenever it receives a text, 
STATE V.MIXTON

Opinion of the Court

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email, call, or when an app seeks to refresh data. Id. at 2220. As a result, 

CSLI is generated continuously without a user’s affirmative act. The Court 

described CSLI evidence as “detailed, encyclopedic, and effortlessly 

compiled,” id. at 2216, and noted that it “tracks nearly exactly the 

movements of its owner,” allowing the government to achieve “near perfect 

surveillance, as if it had attached an ankle monitor to the phone’s user,” 

id. at 2218. Concerned that CSLI could be used to continuously and 

effortlessly surveil cell phone users, the Court created a “narrow” exception 

to the third-party doctrine, requiring the government to obtain a search 

warrant for CSLI. Id. at 2220. The Court emphasized that a “detailed 

chronicle of a person’s physical presence compiled every day, every 

moment, over several years” implicated privacy concerns far exceeding 

those in Smith and Miller. Id.

¶20 Following Carpenter, every federal appellate court addressing 

the issue has affirmed that the Fourth Amendment’s warrant requirement 

does not reach IP addresses and ISP subscriber information. See, e.g., United 

States v. Hood, 920 F.3d 87, 92 (1st Cir. 2019) (holding that IP addresses are 

subject to the third-party doctrine and fall outside the scope of Carpenter); 

United States v. Contreras, 905 F.3d 853, 857 (5th Cir. 2018) (ruling that, postCarpenter, ISP subscriber information “falls comfortably within the scope of 

the third-party doctrine”); see also United States v. Wellbeloved-Stone, 777 F.

App’x 605, 607 (4th Cir. 2019) (declining to revisit Bynum’s holding that 

subscriber information was not protected by the Fourth Amendment in 

light of Carpenter); United States v. VanDyck, 776 F. App’x 495, 496 (9th Cir. 

2019) (declining to revisit Forrester’s holding that IP addresses and ISP 

subscriber information are not protected by the Fourth Amendment in light 

of Carpenter).

¶21 Although this Court is not bound by federal appellate courts’

interpretations of federal constitutional provisions, see State v. Montano, 206 

Ariz. 296, 297 ¶ 1 n.1 (2003), we may embrace them to “further predictability 

and stability of the law.” See Weatherford ex rel. Michael L. v. State, 206 Ariz. 

529, 533 ¶ 9 (2003). Here, because the federal appellate courts’ 

jurisprudence is uniform and sound, we decline to depart from it.

D.

¶22 Despite federal appellate courts’ refusal to extend Carpenter’s 

exception to the third-party doctrine to IP addresses and ISP subscriber 
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Opinion of the Court

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information, the court of appeals’ dissent and Mixton argue that this 

information should fall within Carpenter’s exception. Mixton, 247 Ariz. 

at 228–29 ¶¶ 42–43 (Eckerstrom, J., dissenting in part). We disagree. Both 

stretch Carpenter beyond its jurisprudential reach.

¶23 First, Carpenter expressly preserved the third-party doctrine’s

existing application to information, such as cell phone and bank records, 

that is shared with a third party. See 138 S. Ct. at 2216–17, 2220 (“We do not 

disturb the application of Smith and Miller.”). It is beyond contention that 

IP addresses and ISP subscriber information fit this description. Second, 

the nature of an IP address and ISP subscriber information is fundamentally 

different from CSLI’s perpetual surveillance attributes. 

“IP addresses . . . are widely and voluntarily disseminated in the course of 

normal use of networked devices,” United States v. Weast, 811 F.3d 743, 748 

(5th Cir. 2016), reveal only the approximate geographical location of a 

subscriber, supra ¶ 3, and do not divulge the content of a user’s 

communication, supra ¶¶ 17–18. ISP subscriber information includes only 

data the subscriber voluntarily provides the ISP—typically the subscriber’s 

name, address, and phone number. Third, although internet activity may 

be akin to cell phone use in its centrality to participation in a modern 

society, CSLI is generated without an affirmative act by cell phone users

and can be avoided only by ceasing cell phone use entirely, whereas 

internet users retain a measure of autonomy in masking their online 

activities. For example, users can anonymously access the internet via 

public and private services, such as public libraries and public WiFi 

networks at private businesses, or mask their online movements through 

proxy services like virtual private networks (“VPN”). See Shuntich & 

Vogel, supra ¶ 3, at 51. Thus, the IP address may not trace back to the user 

if he uses a third-party network. See Hood, 920 F.3d at 89 (describing a 

suspect’s use of a hotel’s Wi-Fi network to access a messaging app).

¶24 We also reject Mixton’s request that we recognize a novel 

Fourth Amendment protection to avert the government’s theoretical 

derivative use of IP addresses to trace internet users’ browsing history. 

Mixton’s sole source for this claim is a 2013 report by the Office of the 

Privacy Commissioner of Canada, which asserts that an IP address’s

internet history can be discovered by using the address as a search term in 

Google and other public search engines. Off. of the Priv. Comm’r of Can., 

What an IP Address Can Reveal About You (May 2013),
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Opinion of the Court

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https://www.priv.gc.ca/en/opc-actions-anddecisions/research/explore-privacy-research/2013/ip_201305/.

¶25 Mixton’s claim is a thin reed upon which to rest a radical 

departure from unanimous federal Fourth Amendment jurisprudence 

concerning the lack of a privacy interest in an IP address. First, the study 

appears premised on the unproven assumption that an IP address search 

accurately and exhaustively identifies websites visited by a user. Second, 

it is not apparent that the report’s results have been replicated, and we are 

unaware of any other authority that supports the report’s claim that an IP 

address’s exhaustive search history is publicly accessible. See Product 

Privacy Notice – VPN Products, Pango, 

https://www.pango.co/privacy/vpnproducts/#:~:text=Our%20VPN%20products%20do%20not%20log%20or

%20otherwise%20record%20IP,accessed%20through%20a%20VPN%20con

nection (last visited Jan. 05, 2020) (explaining that an IP address only reveals 

a user’s ISP and geographical identifiers). In fact, during argument, counsel 

for Mixton conceded that, with respect to such Google searches, she did not 

“know specifically how much information [IP addresses] reveal.” Third, 

even if an IP address could be used to peruse a user’s search history with a 

public search engine, any assertion of privacy is even more attenuated 

because a website would have to deliberately publicize its visitors’ IP 

addresses to reveal a user’s browser history. See Joshua J. 

McIntyre, Balancing Expectations of Online Privacy: Why Internet Protocol (IP) 

Addresses Should Be Protected As Personally Identifiable Information, 60 DePaul 

L. Rev. 895, 896 (2011) (explaining that IP addresses are logged by a visited 

website); Ron A. Dolin, J.D., Ph.D., Search Query Privacy: The Problem of 

Anonymization, 2 Hastings Sci. & Tech. L.J. 137, 160–61 (2010) (asserting that 

IP addresses disclosed to a search engine may become the intellectual 

property of the search engine); Wikipedia, Welcome 

unregistered editing, https://en.wikipedia.org/wiki/Wikipedia:Welcome_

unregistered_editing (last visited Jan. 05, 2020) (explaining that Wikipedia 

records and publicizes the IP addresses of users who edit a page without 

logging into an account); Zach Lerner, A Warrant to Hack: An Analysis of the 

Proposed Amendments to Rule 41 of the Federal Rules of Criminal Procedure, 18 

Yale J.L. & Tech. 26, 64 (2016) (“The collection of a user’s IP address is less 

harmful to that user than the collection of his or her browsing history, email 

content, or other, more personal information.”). Finally, there is no 

allegation in this case that the State made derivative use of Mixton’s IP 

address. Instead, the sole issue before us is the constitutionality of the 
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State’s use of a federal administrative subpoena to obtain an IP address and 

ISP subscriber information, which is the only relevant authority the federal 

statute confers.

¶26 In sum, Carpenter expressly preserves existing applications of 

Smith and Miller and its logic does not extend its exception to the third-party 

doctrine for CSLI information to IP addresses and ISP subscriber 

information. Such information does not implicate the privacy interests 

embodied in the de facto omnipresent surveillance generated by “detailed, 

encyclopedic” CSLI information. Carpenter, 138 S. Ct. at 2217. Therefore, 

we hold that—just as every federal court has held—the Fourth Amendment 

does not, in light of Carpenter, require a search warrant to obtain IP 

addresses and ISP subscriber information.

II.

¶27 We turn next to Mixton’s contention that the Arizona 

Constitution, article 2, section 8, requires the State to obtain a warrant or 

court order to acquire his IP address or ISP subscriber information.

A.

¶28 Our primary purpose when interpreting the Arizona 

Constitution is to “effectuate the intent of those who framed the provision.” 

Jett v. City of Tucson, 180 Ariz. 115, 119 (1994). “When the language of a 

provision is clear and unambiguous, we apply it without resorting to other 

means of constitutional construction.” Heath v. Kiger, 217 Ariz. 492, 494 ¶ 6 

(2008). We may examine its history, if necessary, to determine the framers’ 

intent. Boswell v. Phx. Newspapers, Inc., 152 Ariz. 9, 12 (1986).

¶29 The Arizona Constitution provides that “[n]o person shall be 

disturbed in his private affairs, or his home invaded, without authority of 

law.” Ariz. Const. art. 2, § 8. This section, entitled “Right to Privacy” and 

often referred to as the “Private Affairs Clause,” was adopted verbatim 

from the Washington State Constitution. See Wash. Const. art. 1, § 7. 

Passage of Arizona’s Private Affairs Clause preceded the Fourteenth 

Amendment’s incorporation of the Fourth Amendment, see John Leshy, The 

Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, 81 (1988), but it “is of 

the same general effect and purpose as the Fourth Amendment to the 

Constitution of the United States.” Turley v. State, 48 Ariz. 61, 70 (1936).
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Opinion of the Court

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¶30 As an analytical starting point, we compare the texts of 

Arizona’s Constitution and the relevant federal amendments to determine 

whether Arizona’s Constitution provides greater protections than its 

federal counterpart. See, e.g., Brush & Nib Studio, LC v. City of Phoenix, 247 

Ariz. 269, 281 ¶ 45 (2019) (comparing the language in the First Amendment 

and article 2, section 6 of the Arizona Constitution). We have observed that 

“[t]he Arizona Constitution is even more explicit than its federal 

counterpart in safeguarding the fundamental liberty of Arizona citizens.” 

State v. Ault, 150 Ariz. 459, 463 (1986). The Fourth Amendment protects a 

finite index of enumerated items—“persons, houses, papers, and effects”—

whereas the Private Affairs Clause, by its terms, encompasses the 

seemingly more expansive realm of “private affairs.” Compare U.S. Const. 

amend. IV with Ariz. Const. art. 2, § 8.

¶31 We have noted since statehood that “[s]ection 8, article 2, of 

the state Constitution . . . , although different in its language, is of the same 

general effect and purpose as the Fourth Amendment, and, for that reason, 

decisions on the right of search under the latter are well in point on section 

8.” Malmin v. State, 30 Ariz. 258, 261 (1926). See also State v. Pelosi, 68 Ariz. 

51, 57 (1948) (noting that the Private Affairs Clause “was adopted for the 

purpose of preserving the rights which the Fourth Amendment to the 

Federal Constitution was intended to protect”), overruled on other grounds by 

State v. Pina, 94 Ariz. 243 (1963). “We have the right, however, to give such 

construction to our own constitutional provisions as we think logical and 

proper, notwithstanding their analogy to the Federal Constitution and the 

federal decisions based on that Constitution.” Turley, 48 Ariz. at 70–71.

¶32 Indeed, we have recognized that the Private Affairs Clause 

provides broader protections to the home than the Fourth Amendment.

Ault, 150 Ariz. at 463. But we have also recognized the value in uniformity 

with federal law when interpreting and applying the Arizona Constitution. 

See State v. Casey, 205 Ariz. 359, 362 ¶ 11 (2003) (superseded by statute, 

A.R.S. § 13–205(A)) (“Although this court, when interpreting a state 

constitutional provision, is not bound by the Supreme Court’s 

interpretation of a federal constitutional clause, those interpretations have 

‘great weight’ in accomplishing the desired uniformity between the 

clauses.”). To that end, we have held that the exclusionary rule, for 

example, as a matter of state law is “no broader than the federal rule.” State 

v. Bolt, 142 Ariz. 260, 269 (1984) (“It is poor judicial policy for rules 
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Opinion of the Court

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governing the suppression of evidence to differ depending upon whether 

the defendant is arrested by federal or state officers.”). Notably, we have 

yet to expand the Private Affairs Clause’s protections beyond the Fourth 

Amendment’s reach, except in cases involving warrantless home entries.

State v. Peltz, 242 Ariz. 23, 30 ¶ 24 n.3 (App. 2017).

B.

¶33 “Private affairs” is not defined in the Arizona Constitution. 

When the Arizona Constitution does not define its terms, we “look to their 

‘natural, obvious, and ordinary meaning,’” Kotterman v. Killian, 193 Ariz. 

273, 284 ¶ 33 (1999) (quoting Cnty. of Apache v. Sw. Lumber Mills, Inc., 92 

Ariz. 323, 327 (1962)), and our focus is on their meaning at the time the 

Constitution was adopted. See Antonin Scalia & Bryan A. Garner, Reading 

Law: The Interpretation of Legal Texts 78 (2012) (“Words must be given the 

meaning they had when the text was adopted.”). “Private” is defined as

“affecting or belonging to private individuals, as distinct from the public 

generally.” Private, Black’s Law Dictionary (2d. ed. 1910); see also Private,

New Websterian Dictionary (1912) (“peculiar to one’s self; personal; alone; 

secret; not public; secluded; unofficial”). “Affairs” is defined as “a person’s 

concerns in trade or property; business.” Affairs, Black’s Law Dictionary

(2d. ed. 1910). Thus, because “private affairs” is an ambiguous concept that 

eludes precise demarcation, it is subject to differing interpretations. 

Therefore, to discern its meaning, we may consider the context of the 

provision, “the language used, the subject matter, its historical background, 

its effects and consequences, and its spirit and purpose.” Wyatt v.

Wehmueller, 167 Ariz. 281, 284 (1991).

¶34 To discern the meaning of the Private Affairs Clause, we 

consider the history of its passage. Boswell, 152 Ariz. at 12–13. “Arizona’s 

right to privacy was taken verbatim from the Washington constitution, and 

the records of the Arizona constitutional convention contain no material 

addressing its intent.” Hart v. Seven Resorts Inc., 190 Ariz. 272, 277 (App. 

1997) (considering the Arizona constitutional convention record in holding 

that article 2, section 8 does not restrict a private individual’s actions). The 

most consequential reference to article 2, section 8, arose in the context of a 

discussion of article 14, section 16, which requires the “records, books and 

files” of most types of public corporations to be subject to the “full visitorial 

and inquisitorial powers of the state.” See Leshy, supra ¶ 29, at 86–87. 

Delegates argued in favor of article 14, section 16, because “corporations 
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were ‘persons’ and thus protected by the privacy provisions of the 

Declaration of Rights in article II,” and the provision was necessary to 

facilitate regulatory oversight of corporations. Id. at 87. To the extent this 

reference may implicitly support the proposition that the Private Affairs 

Clause shields a corporation from the state’s sweeping legislative authority 

to examine all of its records for regulatory purposes as envisioned under 

article 14, section 16, it does not illuminate whether a federal administrative 

subpoena seeking non-content information from a third-party corporation 

to advance a criminal investigation of a subscriber runs afoul of the Arizona 

Constitution. And although the constitutional convention record is silent 

on the intent of the Private Affairs Clause, it details several delegates’ 

objections to extending state constitutional protections in other contexts 

beyond those recognized under the federal Constitution at the time. See, 

e.g., id. at 84–85 (discussing an amendment which would have suppressed 

evidence obtained from prisoners “under the ‘third degree’” or by torture, 

and the convention’s rejection of a proposal to ban the death penalty).

¶35 Mixton and Amici argue that the Arizona constitutional 

convention’s deliberations support the view that the Private Affairs Clause 

protects IP addresses and ISP subscriber information. Amicus Goldwater 

Institute and the dissent advance the argument that Arizona adopted the 

provision to shield businesses and individuals from growing government 

demands to investigate their financial dealings. See Timothy Sandefur, The 

Arizona “Private Affairs” Clause, 51 Ariz. St. L.J. 723, 731 (2019) (highlighting 

historical editorial complaints from the Arizona Republican against 

legislative investigations); infra ¶ 108. But, as noted, the constitutional 

convention record is devoid of affirmative evidence of this sentiment. 

Further, the dissent’s reliance on contemporaneous editorial comments 

made to the Arizona Republican sheds no light on this issue, because those 

complaints centered on the dangers of sweeping legislative investigations

involving unfettered state access to a corporation’s business records for 

political or nefarious purposes. Id. In short, notably absent from the 

records of the constitutional convention is any objection to state use of a 

subpoena to obtain a business record to facilitate a legitimate criminal 

investigation of a corporate customer.

¶36 Having failed to identify relevant support for its position in 

the Arizona constitutional convention archives or contemporaneous 

writings from the local paper of record, the dissent asserts the federal thirdparty doctrine and its underlying logic are irreconcilable with the Arizona 
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15

Constitution because “‘private affairs’ were understood in the early 

Twentieth Century to broadly encompass both personal and business 

matters, even if transmitted through third parties.” Infra ¶¶ 100, 107. But 

the dissent’s examples—telegraphs, census data, tax returns, and the like—

concern the propriety of public disclosure of the content of communications 

or sensitive information gathered by the government. Infra ¶ 106. The legal 

protections afforded the contents of telegraphs or detailed personal census 

or tax information collected by the government do not inform whether noncontent IP address or ISP information is a “private affair” under the Arizona 

Constitution.

¶37 The dissent also cites to Boyd v. United States, 116 U.S. 616 

(1886), and Ex parte Jackson, 96 U.S. 727 (1877), in support of its claim that,

at the time of Arizona statehood, the Private Affairs Clause was widely 

understood to include business transactions “even within Fourth 

Amendment jurisprudence at the turn of the century.” Infra ¶ 109. But Boyd 

is distinguishable because it merely held that the Fourth and Fifth 

Amendments foreclose the government from compelling a defendant 

business owner in a criminal and forfeiture case, without a warrant, to 

produce at trial self-incriminating business records. 116 U.S. at 620–22. 

And Jackson simply establishes the unremarkable proposition that opening 

and reading the contents of sealed mail requires a warrant. 96 U.S. at 733. 

Boyd and Jackson fail to illuminate what convention delegates may have 

thought about an entirely different constitutional proposition—the 

propriety of the state’s use of an administrative subpoena for corporate 

records to advance a criminal investigation against a customer who does 

not own or control the records.

¶38 Significantly, even assuming the Private Affairs Clause 

protects private information unrelated to business dealings, nothing in the 

record supports the proposition that the Arizona Constitution prohibits the

state from obtaining an IP address and ISP information from a third-party 

provider, via federal subpoena, to advance a criminal investigation. If 

anything, the text of article 14, section 16, and the discussion preceding its 

passage, militate in favor of state access to certain corporate records held by 

third parties to aid criminal investigations. Accordingly, Arizona’s 

constitutional convention record does not support the conclusion that the 

Private Affairs Clause protects such information and, thus, forecloses the 

State’s warrantless access to it.
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Opinion of the Court

16

C.

¶39 We next address the applicability of the “reasonable 

expectation of privacy” analysis to our delineation of the scope of the 

Private Affairs Clause’s protections.

¶40 The dissent urges that we avoid any inquiry of the 

reasonableness of our citizens’ expectation of privacy in discerning the 

meaning of “private affairs.” Infra ¶ 127. But the very concept of “privacy” 

is difficult to reconcile with persons who transmit information to third 

parties, such as corporate entities, who are free to collect, maintain, and 

make collateral commercial use of it. Consequently, any definition of 

“privacy” must logically entail consideration of the nature of the 

information, and whether and how it is shared with others. Additionally, 

it must necessarily include an assessment of the reasonableness of an 

asserted privacy interest to determine whether it is, in fact, private.

¶41 Our consideration of the reasonable expectation of privacy 

analysis, or at least its inherent logic in defining the scope of the Private 

Affairs Clause, is not novel, and the dissent ignores or discounts our longstanding approach to article 2, section 8. We do not discern the scope of the 

Private Affairs Clause in a vacuum, but rather we apply the “reasonable 

expectation of privacy test” to determine its protections. See, e.g., Mazen v. 

Seidel, 189 Ariz. 195, 198–200 (1997) (holding that a homeowner forfeits any 

reasonable expectation of privacy once firefighters enter his house); Ault, 

150 Ariz. at 463 (“It is clear that the Fourth Amendment . . . and article 2, 

section 8 of the Arizona Constitution proscribe unreasonable search and 

seizure by the state.”); State v. Juarez, 203 Ariz. 441, 445 ¶ 16 (App. 2002) 

(“Arizona courts have consistently applied the Fourth Amendment’s 

‘legitimate expectation of privacy’ requirement when determining 

unlawful search or seizure claims made pursuant to Article 2, Section 8.”). 

Thus, the Private Affairs Clause protects a privacy interest in an IP address 

and ISP subscriber information only if society is prepared to accept such an 

expectation of privacy as reasonable, see Mazen, 189 Ariz. at 198–200; Juarez, 

203 Ariz. at 445 ¶ 16, or, stated differently, if the nature and use of the 

information is consistent with what is reasonably conceived as being 

private.

¶42 Mixton and the court of appeals contend that internet users 

are entitled to a reasonable expectation of privacy in all internet activity. 
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17

But the technological reality belies this claim. Indeed, the websites 

themselves are public, and are locatable through public search engines. 

Moreover, third parties often engage in pervasive and prolific derivative 

disclosure and sharing of internet users’ online activity. For example, 

“[i]nternet activity tracking is used frequently by online advertising 

networks to create target[ed] advertisements based on users’ individual 

preferences by tracking the user in a variety of ways.” Alicia Shelton, A 

Reasonable Expectation of Privacy Online “Do Not Track” Legislation, 45 U. Balt. 

L.F. 35, 41 (2014). In fact, third-party advertisement networks often share 

browsing information from multiple websites to build profiles on users. See 

id. (“Suddenly the ad network knows not just technical details of a browser, 

but potentially very personal information about its user.”). An

investigation of third-party collection and use of internet users’ activity 

revealed that numerous companies track online activity through the top 100 

visited websites. Andrew Couts, Top 100 Websites: How They Track Your 

Every Move Online, Digital Trends (Aug. 30, 2012), 

http://www.digitaltrends.com/web/top-100-websites-how-are-theytracking-you/.

¶43 Website operators also collect data on, and analyze, internet 

users’ activities. For example, websites can use “browser fingerprinting”

programs to gather “innocuous bits of information, such as a browser’s 

version number, plug-ins, operating system, and language, [so that] 

websites can uniquely identify (‘fingerprint’) a browser and, by proxy, its 

user.” Omer Tene & Jules Polonetsky, To Track or “Do Not Track”: Advancing 

Transparency and Individual Control in Online Behavioral Advertising, 13 Minn. 

J.L. Sci. & Tech. 281, 294–95 (2012); see also DuckDuckGo, Privacy 

Mythbusting #4: I can’t be identified just by browsing a website. (If only!) (July 

11, 2017), https://spreadprivacy.com/browser-fingerprinting/. Apps and 

other programs on mobile devices can also be used to “track users across

websites.” See Tene & Polonetsky, supra, at 296; Thomas Brewster, 

Exclusive: Warning Over Chinese Mobile Giant Xiaomi Recording Millions of 

People’s ‘Private’ Web and Phone Use, Forbes (Apr. 30, 2020, 09:25 AM),

https://www.forbes.com/sites/thomasbrewster/2020/04/30/exclusivewarning-over-chinese-mobile-giant-xiaomi-recording-millions-of-peoplesprivate-web-and-phone-use/#75527f831b2a. Websites also often employ 

“cookies” that allow them to track internet users’ browsing habits. In re 

Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 268 (3d Cir. 2016).
STATE V.MIXTON

Opinion of the Court

18

¶44 In sum, in this age of information sharing and interconnectivity, “[m]ost of us understand that what we do on the [i]nternet is 

not completely private.” Id. at 266 (noting that our personal data “feed[s]

an entire system of trackers, cookies, and algorithms designed to capture 

and monetize the information we generate”). Our “ubiquitous and 

pervasive internet use” that is “internet-connected, cloud-dependent, and 

app-reliant for personal communications, all manner of commercial 

transactions, 24-7 entertainment, and universal positional tracking,” makes 

it hard to believe that anyone still retains “this largely antiquated notion” 

of “anonymity in their internet use.” Mixton, 247 Ariz. at 230 ¶ 49 

(Espinosa, J., dissenting in part). Whether internet users are troubled with 

this degree of data collection and sharing is beyond the purview of our 

authority. It is the legislature’s prerogative to proscribe or curtail use of 

such data. However, given third-parties’ widespread and pervasive 

collection, analysis, and sharing of detailed internet activity, including 

website visitation, we are unpersuaded that Mixton held a reasonable 

expectation of privacy in his IP address and ISP subscriber information. 

Consequently, as here, when a person discloses non-content information to 

a third party, even under the earnest but misguided belief that the thirdparty will safeguard the information, such information sharing is 

fundamentally inconsistent with any notion of privacy and he forfeits a 

reasonable expectation of privacy in that information. See Carpenter, 138 S. 

Ct. at 2216.

¶45 The dissent asserts that the reasonable expectation inquiry 

provides an “amorphous standard” that is absent in our constitutional text. 

Specifically, the dissent claims that this framework “replaces an objective 

state constitutional command with a subjective standard whose meaning 

changes over time to reflect an evolving societal consensus.” In so claiming,

the dissent dismisses the relevance of court decisions to the inquiry. Infra 

¶ 111.

¶46 The dissent overlooks the obvious. The text of the Private 

Affairs Clause does not define the meaning of “private affairs,” nor does 

the history of its passage delineate the scope of its application. Thus, its text 

does not command, objectively or otherwise, the standard by which we 

determine its reach. We merely follow this Court’s longstanding approach 

in applying the reasonable expectation analysis to determine how to apply 

the Private Affairs Clause, and the central inquiry remains whether an 

asserted interest is private. See supra ¶ 41. The dissent’s invocation of “an 
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Opinion of the Court

19

objective state constitutional command” does nothing to inform the 

inquiry.

¶47 The unanimous federal court authority, supra ¶ 20, and the 

clear consensus of state courts, infra ¶ 64, finding no privacy interest in IP 

addresses and ISP subscriber information, have affirmed their respective 

jurisdiction’s popular consensus on this point as reflected in their laws 

permitting access to this information without court authorization. Federal 

and state laws—like the one that authorized the federal administrative 

subpoenas in this case—reflect a consensus view of our citizens’ privacy 

interests in IP addresses and ISP subscriber information. Furman v. Georgia, 

408 U.S. 238, 383 (1972) (Burger, CJ., dissenting) (“[I]n a democratic society 

legislatures, not courts, are constituted to respond to the will and 

consequently the moral values of the people.”). Here, the Arizona 

legislature also expressed the will of our citizens by authorizing law 

enforcement officials to obtain such information with subpoenas. See A.R.S. 

§ 13-3018(A), (C).

¶48 The dissent urges that in lieu of assessing what reasonable 

expectation of privacy society is prepared to accept, we should adopt an 

analytical framework wherein we ask two questions: “(1) whether the 

search encompasses intimate details of a person’s life, and (2) whether the 

disclosure of information was made for a limited purpose and not for 

release to other persons for other reasons. If those two criteria are met, the 

information is a private affair and the government may obtain it only with 

authority of law.” Infra ¶ 127. The dissent then concludes that both criteria 

are met here. We disagree.

¶49 First, IP addresses and ISP information do not reveal intimate 

details of a person’s life. Supra ¶¶ 3, 25. Second, as discussed, an IP address 

is akin to a return address on an envelope deposited in the mail, and an 

internet user’s online activities are routinely “released to other persons for 

other reasons.” Supra ¶¶ 2, 40–41. Third, IP addresses and ISP records 

belong to the third-party provider, not the subscriber. Supra ¶ 25. 

Moreover, despite the dissent’s assertion that sharing information with 

individuals in an ostensible position of trust does not render the 

information public, infra ¶ 130, providing information to a third-party ISP 

that may disseminate the information for commercial purposes stretches 

the notion of privacy too far. Thus, we conclude that IP addresses and ISP 
STATE V.MIXTON

Opinion of the Court

20

information are not a “private affair” even under the dissent’s alternative 

analytical approach.

¶50 Essentially, the dissent contends that the textual differences

between the Fourth Amendment and the Private Affairs Clause necessarily 

lead to different protections for IP addresses and subscriber information. 

Infra ¶¶ 78, 86–89, 99. We disagree. Although we agree that the textual 

variations signal broader protections under the Private Affairs Clause, we 

reject the dissent’s implication that the term “private affairs” forecloses

consideration of conduct—such as sharing information with a third party—

that is inconsistent with the notion of privacywhen defining the provision’s 

scope, or that its different terms necessarily provide broader protections 

than the Fourth Amendment in every circumstance.

¶51 Thus, we conclude that an IP address and subscriber 

information are not “private affairs” under the Private Affairs Clause 

because the nature of the information is inconsistent with privacy: an 

internet user’s expectation of privacy in such non-content information is 

unreasonable in light of the nature of the information; it is voluntarily 

shared with third parties; and such third parties own, and often engage in 

pervasive legal derivative use of, it.

D.

¶52 The court of appeals asserts that the state’s possession of an

IP address and ISP subscriber information is the “twenty-first-century 

equivalent of a trip through a home to see what books and magazines the

residents read, who they correspond with or call, and who they transact 

with and the nature of those transactions.” Mixton, 247 Ariz. at 225 ¶ 27. 

We disagree. As discussed, supra ¶ 25, an IP address does not provide the 

state with an illicit view into an internet user’s private affairs because, 

absent a warrant, the state is prohibited from examining the substance or 

content of a user’s communications. In fact, the only information the state 

theoretically could acquire about an internet user’s online activities through 

an IP address is the information a user discloses to a website and which the 

website subsequently chooses to publicize. See, e.g., Kelly Weill, Edits to 

Wikipedia pages on Bell, Garner, Diallo traced to 1 

Police Plaza, Politico (Mar. 13, 2015, 05:28 AM), https://www.politico.com

/states/new-york/city-hall/story/2015/03/edits-to-wikipedia-pages-onbell-garner-diallo-traced-to-1-police-plaza-087652 (explaining that 
STATE V.MIXTON

Opinion of the Court

21

reporters determined internet users at New York Police Department 

headquarters edited Wikipedia pages because Wikipedia published the IP 

addresses of unregistered editors).

¶53 The sole issue before us is whether the State may obtain an IP 

address and ISP subscriber information with a valid federal administrative 

subpoena. Although we hold that internet users, by virtue of voluntarily 

providing this non-content information to third-party providers, do not 

have a reasonable expectation of privacy in this discrete class of information

under the federal or Arizona Constitutions, we need not consider the 

constitutionality of the State’s theoretical derivative use of this non-content 

information to discover what some websites may publicize about a user’s 

internet search history. We underscore, however, that the third-party 

doctrine applies only to non-content information, see supra ¶¶ 14–20; 

18 U.S.C. § 2702(a) (protecting the “contents of a communication”), as does 

our holding under the Arizona Constitution.

E.

¶54 Mixton and the court of appeals rely on cases from other 

jurisdictions that have rejected applications of the third-party doctrine, or 

the doctrine’s inherent logic, on state constitutional grounds. The court of 

appeals claims that these states have rejected this approachunder their state 

constitutions because they have concluded that “people . . . have a 

reasonable expectation of privacy in information they must furnish to 

companies providing banking, phone, and internet services in order to use 

those services.” See Mixton, 247 Ariz. at 224 ¶ 25 (collecting cases from 

states that have rejected the third-party doctrine on state constitutional 

grounds). But, save one of these cases, infra ¶ 62, these courts have not 

recognized a reasonable expectation of privacy in an IP address or ISP 

subscriber information.

¶55 In any event, numerous state courts have applied the thirdparty doctrine or similar reasoning under their respective constitutions. See 

State v. Clark, 752 S.E.2d 907, 921 n.13 (W. Va. 2013) (noting that Alabama, 

Georgia, Kansas, Maryland, North Carolina, North Dakota, Oklahoma, and 

South Carolina have adopted the third-party doctrine pursuant to Smith

and Miller). At best, Mixton correctly notes a split in state court authority 

on the applicability of the third-party doctrine or similar reasoning to state 

constitutions.
STATE V.MIXTON

Opinion of the Court

22

¶56 Mixton places particular emphasis on Washington state court 

decisions, namely State v. Gunwall, 720 P.2d 808, 812 (Wash. 1986), and State 

v. Miles, 156 P.3d 864, 868 ¶ 14 (Wash. 2007), for the proposition that the 

third-party doctrine or its reasoning is inconsistent with Arizona’s Private 

Affairs Clause. Mixton contends that Washington has rejected Miller and 

Smith and, thus, the third-party doctrine, and urges us to do the same. We 

are unpersuaded. Washington has not categorically rejected the third-party 

doctrine or its logic, but rather examines the scope of its state constitution’s 

protections on a case-by-case basis, and it has not considered whether its 

constitution requires a warrant or court order to obtain an IP address and 

ISP subscriber information.

¶57 Washington courts employ a non-exclusive, six-part test to 

determine whether the state constitution affords broader protections than 

the federal Constitution. Gunwall, 720 P.2d at 812–13 (enumerating factors

such as the textual language of the state constitution, significant textual 

differences between the state and federal constitutions, state constitutional 

and common law history, preexisting state law, structural variance between 

the state and federal constitutions, and matters of state interest or local 

concern). In interpreting the Washington Constitution, “the relevant 

inquiry for determining when a search has occurred is whether the State 

unreasonably intruded into the defendant’s ‘private affairs.’” Id. at 814. 

Thus, Washington courts consider “the type of information those records 

revealed” and “what kind of protection has historically been afforded to the 

interest asserted” when deciding whether a search violates the state 

constitution. Miles, 156 P.3d at 868 ¶ 12–13.

¶58 In Gunwall, the Washington Supreme Court held that a 

warrantless pen register violated the Washington Constitution. The court 

emphasized that state statutes protecting communications were “broad, 

detailed and extend[ed] considerably greater protections to [Washington] 

citizens in this regard than . . . comparable federal statutes and rulings.” 

720 P.2d at 815. It also reasoned that a pen register, which records all of a 

defendant’s outgoing calls, “may affect other persons and can involve 

multiple invasions of privacy as distinguished from obtaining documents 

in a single routine search using a conventional search warrant.” Id. at 816. 

As such, Gunwall relied on Washington’s statutes and the nature of pen 

register information to inform its analysis of the scope of Washington’s 

constitutional privacy protections.
STATE V.MIXTON

Opinion of the Court

23

¶59 In Miles, the Washington Supreme Court held that the state’s 

use of an administrative subpoena to search a person’s banking records 

violated the state constitution. 156 P.3d at 866 ¶ 1. The court’s analysis 

centered on its precedents and the nature of the seized information to 

determine whether it was protected by the state constitution. Id. at 868 ¶ 14 

(noting that court’s prior holding that garbage placed at the curb is

protected by the state constitution because it may contain sensitive personal 

information). The court emphasized that banking records reveal “what 

political, recreational, and religious organizations a citizen supports. They 

potentially disclose where the citizen travels, their affiliations, reading 

materials, television viewing habits, financial condition, and more.” 

Id. at 869 ¶ 17. The Miles Court also noted, as in Gunwall, that state statutes 

protect a customer’s banking information and govern third-party 

disclosures. Id. at 869 ¶ 16. The court reasoned that the sensitive nature of 

a customer’s banking records required a warrant or subpoena issued by a 

neutral magistrate for its seizure. Id. at 869–70 ¶¶ 19–22.

¶60 We find Gunwall and Miles distinguishable. First, unlike 

Washington, Arizona statutes and court decisions do not provide greater 

protections concerning pen registers or banking records than do federal 

statutes and rulings. See, e.g., A.R.S. § 13-1812 (authorizing county 

attorneys to issue a subpoena duces tecum for financial institution account 

records). In fact, contrary to Washington’s expansive legislative privacy 

protections which animate its courts’ constitutional decisions in this area, 

see State v. Roden, 321 P.3d 1183, 1185–86 (Wash. 2014), the Arizona 

legislature has authorized the state to issue administrative subpoenas for 

subscriber information and other non-content service provider records 

based on a showing that “the information likely to be obtained is relevant 

to an ongoing criminal investigation.” See § 13-3018(A), (C). Second, an IP 

address or ISP subscriber information does not implicate the privacy 

interests addressed in those cases. See supra ¶¶ 24–25.

¶61 The dissent’s reliance on State v. Hinton is similarly misplaced. 

There, the Washington Supreme Court held that police may not inspect text 

messages on a defendant’s cell phone without a search warrant because 

they are a “private affair” under the state constitution. 319 P.3d 9, 11 ¶ 1 

(Wash. 2014). But a text message, unlike an IP address or subscriber 

information, is considered “content” and, thus, is also subject to the Fourth 
STATE V.MIXTON

Opinion of the Court

24

Amendment’s warrant requirement. See Riley v. California, 573 U.S. 373, 403

(2014). Hinton is inapposite to the issue before us.

¶62 We also note that the Washington Supreme Court considers 

the interests of national uniformity when determining whether to extend its 

state constitutional provisions beyond the federal constitutional 

protections. Gunwall, 720 P.2d at 813. We recognize the utility in uniform 

state and federal criminal rules, procedures, and standards. See, e.g., Bolt, 

142 Ariz. at 269. The nature of cybercrime squarely implicates these 

interests and militates in favor of uniform federal and state search and 

seizure standards. See, e.g., Megan McGlynn, Competing Exclusionary Rules 

in Multistate Investigations: Resolving Conflicts of State Search-And-Seizure 

Law, 127 Yale L.J. 406, 411 (2017) (noting that multi-jurisdictional search and 

seizure issues are proliferating as a consequence of advancing 

technologies).

¶63 Thus, we conclude that, even applying the Washington 

courts’ approach, Arizona’s Private Affairs Clause does not require a 

warrant or court order to obtain an IP address or subscriber information.

F.

¶64 State courts may be split on the applicability of the third-party 

doctrine or similar approaches to state constitutions, but a clear consensus 

now exists concerning whether such constitutions protect an IP address and 

ISP subscriber information. Of the six states that have considered the issue, 

all but one have determined that their citizens hold no reasonable 

expectation of privacy in such information. See Rader v. State, 932 N.E.2d 

755, 761–62 (Ind. Ct. App. 2010) (holding that the state constitution does not 

require a warrant for internet subscriber information); State v. Leblanc, 137 

So. 3d 656, 658–62 (La. Ct. App. 2014) (“Even if we were to assume that 

defendant or his wife had an actual or subjective expectation of privacy in 

the subscriber information provided to Cox, we would still find that this 

expectation of privacy would not be recognized by society as reasonable.”); 

State v. Mello, 27 A.3d 771, 776–77 (N.H. 2011) (“[W]hile individuals may 

have a reasonable expectation of privacy in the contents of their 

communications, i.e., the content of e-mails and the specific content viewed 

over the Internet, they have no such privacy interest in information 

voluntarily disclosed to an Internet service provider in order to gain access 

to the Internet.”); State v. Delp, 178 P.3d 259, 262–65 (Or. Ct. App. 2008) 

(“[D]efendant has not directed us to any source of law that establishes that 
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Opinion of the Court

25

he has some interest in keeping private the noncontent information that is 

held by a third party regarding his Internet usage. Nor are we aware of any 

principle that would prevent AOL from responding to a proper 

government subpoena concerning his subscriber information.”); State v. 

Simmons, 27 A.3d 1065, 1069–70 (Vt. 2011) (“Nothing in our [state

constitutional] rulings suggest that an internet subscriber address and 

frequency of use data, unembellished by any personal information, should 

be treated as private.”).

¶65 Apart from the court of appeals and dissent here, the only 

court to recognize a state constitutional right to privacy in subscriber 

information provided to an ISP did not require the state to procure a search 

warrant for such information, but rather permitted disclosure of the 

information with a grand jury subpoena and without notice to the 

subscriber. State v. Reid, 945 A.2d 26, 33–37 (N.J. 2008). The dissent’s search 

warrant requirement for non-content IP address and ISP subscriber 

information calls into question the viability of other long-standing law 

enforcement compulsory process investigative tools, including those that 

require a court order to collect private information but permit disclosure 

under a lower standard than probable cause. See, e.g., A.R.S. § 13-3017 

(authorizing law enforcement officials to obtain a judicial ex parte order to 

install and use a pen register or trap and trace device based upon the 

likelihood that the information “to be obtained is relevant to an ongoing 

criminal investigation”); A.R.S. § 13-1812 (authorizing a county attorney to 

issue “a subpoena duces tecum to a financial institution to obtain account 

records” in an investigation or prosecution of enumerated offenses).

¶66 The dissent contends that “it should not be difficult” for the 

state to obtain a search warrant “in the circumstances of this case.” Infra 

¶ 131. But requiring a search warrant to obtain an IP address and 

subscriber information would essentially limit law enforcement to 

investigating completed internet-based offenses. For example, what if

Mixton had merely queried the undercover detective about trading child 

pornographic images, but never transferred the photographs? This 

unworkable approach would invariably stifle proactive investigations of 

internet-based crimes.

G.
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Opinion of the Court

26

¶67 The court of appeals and Mixton warn that the logic 

underlying the third-party doctrine may lead to eradication of anonymous 

speech and that internet users would have to engage in “some unidentified 

Herculean effort to maintain anonymity” to partake in internet activities 

free from government intrusion. Mixton, 247 Ariz. at 226 ¶ 31. Not true.

¶68 First, Mixton’s assertion of a right to speak anonymously does 

not extend to anonymous distribution of illicit material without legal 

consequence. See New York v. Ferber, 458 U.S. 747, 763 (1982) (noting “child 

pornography as a category of material outside the protection of the First 

Amendment”); Mobilisa, Inc. v. Doe, 217 Ariz. 103, 108 ¶ 12 (App. 2007) 

(“The right to speak anonymously, however, is not absolute . . . [and] an 

anonymous speaker, like a known one, has no First Amendment right to 

engage in obscenity.”). Neither the federal administrative subpoena here, 

nor any provision under Arizona law, would permit the state to acquire an 

IP address or subscriber information for a reason unrelated to a criminal 

investigation, and no federal or Arizona constitutional provision protects 

the anonymous distribution of child pornography.

¶69 Second, anonymous speech is not implicated in this case 

because Mixton did not plausibly endeavor to elude identification. 

Although he used a pseudonym as his personal identifier on his Kik 

account, he conveyed data files to others using his actual IP address. As 

noted, supra ¶ 2, an IP address functions as a return address for any 

internet-based computer activity. Essentially, Mixton’s internet use of a 

pseudonym is analogous to his mailing a letter under a pseudonym but 

scrawling his actual return address on the outside of the envelope. 

Unsurprisingly, a letter sender is afforded no constitutional protections to 

the information on the outside of an envelope. See Forrester, 512 F.3d at 511. 

Although we embrace the principle of anonymous speech and recognize its 

inestimable contribution to our liberty, authoring an essay under the 

pseudonym “Publius” does little to preserve the author’s anonymity if the 

exterior of the envelope containing the essay reads “From the Office of 

Alexander Hamilton.”

¶70 Third, the court of appeals and Mixton exaggerate the lengths 

necessary to maintain anonymity over the internet. An internet user’s 

“Herculean effort to maintain anonymity” entails no more than using 

publicly available computers, publicly available WiFi networks, or VPNs to 

mask his IP address. Shuntich & Vogel, supra ¶ 3, at 51; supra ¶ 23.
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Opinion of the Court

27

¶71 Finally, Mixton and the court of appeals’ remonstrance on the 

demise of anonymous speech is curious in light of its persistence in the 

wake of more than a decade of uniform federal jurisprudence affirming the 

constitutionality of law enforcement subpoena access to IP address and ISP 

subscriber information. Supra ¶¶ 14–20.

H.

¶72 The court of appeals and Mixton raise the specter of official 

misuse of the non-content fruits of the federal administrative subpoena.

This reasoning is highly speculative and beyond the facts before us. We 

decline the invitation to center our constitutional analysis on such 

speculation about potential abuse of government authority. See Golden v. 

Zwickler, 394 U.S. 103, 108 (1969) (noting that “‘concrete legal issues, 

presented in actual cases, not abstractions’ are requisite” to adjudicating 

constitutional issues (quoting United Pub. Workers of Amer. (C.I.O.) v. 

Mitchell, 330 U.S. 75, 89 (1947))).

¶73 First, in this case, the scope of the federal administrative 

subpoena is not subject to abuse on its terms because, as relevant here, it 

only allows an agency district director or special agent to obtain IP address 

and ISP subscriber information based upon an articulable belief that the 

information is relevant to investigation of a child-exploitation crime. 19 

U.S.C. § 1509(a)(1) (“In any investigation . . . conducted for the purpose 

of . . . insuring compliance with the laws of the United States administered 

by the United States Customs Service, the Secretary (but no delegate of the 

Secretary below the rank of district director or special agent in charge) may 

– examine . . . any record . . . which may be relevant to such 

investigation.”). The subpoena did not permit the government to obtain 

content-based information, which remains subject to a warrant 

requirement. Supra ¶¶ 14–20. Any concern that the government may

misuse the non-content IP address and ISP subscriber information, once 

lawfully obtained, is not before us.

¶74 Second, it is illogical to condition the constitutionality of an 

otherwise lawful compulsory process based on speculation that the process 

may be abused or its fruits may be put to illegal use. Instead, an aggrieved 

party may seek recourse from the courts to rectify an unlawful search or 

seizure. See, e.g., State v. Buccini, 167 Ariz. 550, 558 (1991) (suppressing 
STATE V.MIXTON

Opinion of the Court

28

evidence when a police officer “has deliberately or recklessly made material 

misstatements and omissions in the original affidavit” and a redrafted

affidavit would otherwise lack probable cause). Here, the state obtained 

Mixton’s IP address and ISP subscriber information with a valid federal 

administrative subpoena, and could similarly have done so under Arizona 

law (§ 13-3018(A), (C)), which ensures that a record is generated to justify 

its issuance and to afford a remedy. See United States v. Barnes, No. CR18-

5141 BHS, 2019 WL 2515317, at *7 (W.D. Wash. June 18, 2019) (noting that, 

although 19 U.S.C. § 1509(a)(1) provides no suppression remedy, evidence 

seized based upon a statutory violation may be suppressed if “the excluded 

evidence arose directly out of statutory violations that implicated important 

Fourth and Fifth Amendment interests” (quoting Sanchez-Llamas v. Oregon, 

548 U.S. 331, 348 (2006))).

CONCLUSION

¶75 We hold that neither the Fourth Amendment to the United 

States Constitution nor article 2, section 8 of the Arizona Constitution 

requires law enforcement officials to secure a search warrant or court order 

to obtain IP addresses or subscriber information voluntarily provided to 

ISPs as a condition or attribute of service. The Fourth Amendment does not 

apply to IP addresses or subscriber information under the third-party 

doctrine, and this information is not a “private affair” under the Private 

Affairs Clause. Thus, the state lawfully obtained this information with a 

valid federal administrative subpoena.

¶76 Because we hold that IP address and ISP subscriber 

information does not qualify for protection as a “private affair” under 

article 2, section 8, and that the state lawfully obtained this information with 

a federal administrative subpoena, we need not address whether the 

Arizona Constitution’s “lawful authority” requirement is necessarily 

limited to a search warrant, nor do we consider the state’s good-faith 

exception argument.

¶77 We affirm Mixton’s convictions and vacate the court of 

appeals’ opinion.
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

29

BOLICK, J., joined by BRUTINEL, C.J. and TIMMER, V.C.J., dissenting.

¶78 We are now in the second century of Arizona statehood, yet 

this is the first time the Court has given more than cursory consideration to 

the meaning of the private affairs clause of article 2, section 8 of the Arizona 

Constitution. That provision has no analogue in the federal constitution 

and was clearly intended to provide additional and forceful protections to 

Arizonans against government intrusions into their private affairs. Because 

the majority interprets the private affairs clause in lockstep with the lessprotective Fourth Amendment as construed by the United States Supreme 

Court, thereby draining the meaning expressed in the clause and intended 

by its architects, we respectfully dissent.

I.

¶79 As Arizona was the forty-eighth state, its framers “had the 

opportunity to ponder more than 100 years of United States history before 

penning their own constitution, allowing them to adopt or adjust 

provisions employed by the federal government or other states to meet 

Arizona’s needs.” Rebecca White Berch et al., Celebrating the Centennial: A 

Century of Arizona Supreme Court Constitutional Interpretation, 44 Ariz. St. L.J. 

461, 468 (2012) [hereinafter “Berch”]. In some instances, the framers 

concluded they could not improve upon the federal constitutional framers’ 

handiwork; in others, they sought to add greater protections of individual 

rights and constraints on government power.

¶80 In particular, as this Court has recognized, our constitution’s 

Declaration of Rights is the “main formulation of rights and privileges 

conferred on Arizonans.” Mountain States Tel. & Tel. Co. v. Ariz. Corp. 

Comm’n, 160 Ariz. 350, 356 (1989). Thus, it is our duty to “first consult our 

constitution” whenever a right it “guarantees is in question.” Id. As former 

Chief Justice Rebecca Berch observed, “[h]ad the framers merely intended 

to mirror the guarantees found in the Federal Bill of Rights, they could have 

simply adopted the first eight amendments of the U.S. Constitution. But 

records of Arizona’s convention clearly show that the framers did not 

always agree with the language or implementation of the Federal Bill of 

Rights.” Berch, supra ¶ 79, at 469.
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

30

¶81 The federal constitution is the baseline for the protection of 

individual rights, below which the states cannot go; but in our system of 

federalism, states are free to provide greater protections. City of Mesquite v. 

Aladdin’s Castle, Inc., 455 U.S. 283, 293 (1982); see also PruneYard Shopping Ctr. 

v. Robins, 447 U.S. 74, 81 (1980). Our constitution’s framers repeatedly did 

so in the Declaration of Rights, and especially in the private affairs clause. 

Whereas the vast majority of state constitutions have provisions that 

roughly parallel the language of the Fourth Amendment, only two—ours

and Washington State’s, whose provisions are identical—deliberately chose 

to depart from the Fourth Amendment’s language in favor of a distinct 

provision encompassing a protection for private affairs. Timothy Sandefur, 

The Arizona “Private Affairs” Clause, 51 Ariz. St. L.J. 723, 724 (2019).

¶82 Rather than accord independent vitality to a protection of 

individual rights in our constitution, the majority urges that we should 

extol “the value in uniformity with federal law when interpreting and 

applying the Arizona Constitution.” Supra ¶ 32. Uniformity is certainly a 

value, and when all other things are equal, uniformity may be preferable to 

divergence. But where the Constitution’s framers made deliberate effort to 

distinguish our state constitutional protections from the narrower confines 

of the federal constitution, our failure to credit and enforce our 

constitution’s language and intent inevitably means that those protections 

will not have their intended effect. See Berch, supra ¶ 79, at 473 (“[I]t is not

always appropriate to assume that state and federal provisions should be 

construed identically, given the unique legislative history, purpose, and 

text of the Arizona provision.”); see also Ruth V. McGregor, Recent 

Developments in Arizona State Constitutional Law, 35 Ariz. St. L.J. 265, 276 

(2003) (“None of the opinions from our court provide any in-depth analysis 

of the reasons we have so often opted for a goal of uniformity.”).

¶83 Indeed, the Supreme Court has recognized that an “interest 

in uniformity . . . does not outweigh the general principle that States are 

independent sovereigns with plenary authority to make and enforce their 

own laws as long as they do not infringe on federal constitutional 

guarantees.” Danforth v. Minnesota, 552 U.S. 264, 280 (2008). The states’ 

authority to make distinct rules of criminal procedure, the Court remarked, 

“is not otherwise limited by any general, undefined federal interest in 
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

31

uniformity. Nonuniformity is, in fact, an unavoidable reality in a federalist 

system of government.” Id.

¶84 This Court has consistently recognized “that a Constitution 

should be construed so as to ascertain and give effect to the intent and 

purpose of the framers and the people who adopted it.” State ex rel. 

Morrison v. Nabours, 79 Ariz. 240, 245 (1955); accord Rumery v. Baier, 231 Ariz. 

275, 278 (2013). Arizona’s framers did not leave us guessing what they had 

in mind in crafting the Declaration of Rights, emphasizing in the first two 

sections “the security of individual rights” and that the purpose of 

government is “to protect and maintain individual rights.” Ariz. Const. art. 

2, §§ 1–2.

¶85 Constitutional text should be interpreted according to its 

ordinary public meaning, that is, by reference to the meaning of the 

language generally understood when it was adopted. See, e.g., District of 

Columbia v. Heller, 554 U.S. 570, 577 (2008). Thus, this Court has emphasized 

that “effect be [especially] given to the purpose indicated, by a fair 

interpretation of the language used, and unless the context suggests 

otherwise words are to be given their natural, obvious and ordinary 

meaning.” Morrison, 79 Ariz. at 245; accord State ex rel. Brnovich v. City of 

Phoenix, 468 P.3d 1200, 1205 ¶ 21 (2020) (explaining that, in interpreting 

state constitutional provisions, “we give the words their ordinary meaning, 

unless the context suggests a different one”).

¶86 A comparison of the words of the Fourth Amendment and 

those chosen by the framers of article 2, section 8 underscore the stark 

differences:

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and 

seizures, shall not be violated, and no Warrants shall issue, 

but upon probable cause, supported by Oath or affirmation, 

and particularly describing the place to be searched, and the 

persons or things to be seized.

U.S. Const. amend. IV.
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

32

No person shall be disturbed in his private affairs, or his home 

invaded, without authority of law.

Ariz. Const. art. 2, § 8.

¶87 Most obvious and pertinent here, the protection of “private 

affairs” is nowhere found in the Fourth Amendment. Indeed, a right to 

privacy—based not on express constitutional text but on “penumbras, 

formed by emanations”—would not be found in the federal constitution for 

another 53 years. See Griswold v. Connecticut, 381 U.S. 479, 484 (1965). Its 

express inclusion in a 1912 state constitution strongly suggests that the 

framers had a significant protection in mind, one whose omission in the 

federal constitution they found wanting.

¶88 Moreover, by its terms, the Fourth Amendment is limited to 

“persons, houses, papers, and effects,” which are protected only against 

“unreasonable searches and seizures.” By contrast, the scope of “private 

affairs” under article 2, section 8 is broader on its face, and the protection is 

categorical. See State v. Simpson, 622 P.2d 1199, 1205 (Wash. 1980) 

(construing identical language that “clearly recognizes an individual’s right 

to privacy with no express limitations”).

¶89 And our constitutional language was not chosen randomly. 

The delegates to the constitutional convention considered language parallel 

to the Fourth Amendment, but instead adopted language containing the 

private affairs clause from the Washington Constitution. See Goff, Records 

of the Arizona Constitutional Convention 507–08 (1991). In other words, the 

language of article 2, section 8 was deliberately chosen as an alternative to the 

language of the Fourth Amendment. Cf. State v. Gunwall, 720 P.2d 808, 814–

15 (Wash. 1986) (noting that delegates to the Washington State 

constitutional convention specifically rejected Fourth Amendment 

language, which “lends support to reading [the private affairs clause] 

independently of federal law”).

¶90 Indeed, in rejecting language echoing the Fourth 

Amendment, Arizona’s constitutional framers changed existing Arizona 

law. The Arizona territory was governed by the Howell Code, which 

contained a provision nearly identical to the Fourth Amendment. Howell 
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

33

Code art. VII (1864). Once statehood was achieved, the new constitution’s 

architects abandoned that approach in favor of the broader, express privacy 

provision of article 2, section 8. And when a legislature amends a provision 

by making a significant change in language, we presume it intended a 

different meaning. Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 256 (2012).

¶91 All of which invites the question: if the framers wanted to 

craft language that would be enforced on its own terms, how could they 

have better done so than to reject one set of words and deliberately adopt 

another? Under such circumstances, we should be loath to interpret the 

language the framers chose in lockstep with language the framers 

consciously rejected, and indeed, not only as it was interpreted in 1912 but 

as the Supreme Court has construed it many years later. See Sandefur,supra

¶ 81, at 750 (“Even if the wording of both constitutions is identical, there is 

no constitutional justification for following federal precedent that only 

originates after the people of a state ratify their state constitution.”).

¶92 That the framers meant our constitutional language to have 

independent vitality necessarily follows from the fact that when our 

constitution was adopted, the Fourth Amendment was not yet applicable 

to the states through incorporation under the Fourteenth Amendment. See 

Wolf v. Colorado, 338 U.S. 25, 33 (1949) (declining to apply exclusionary rule 

against the states); see also Twining v. New Jersey, 211 U.S. 78, 108–14 (1908) 

(discussing history of incorporation and collecting cases). Thus, our 

Declaration of Rights was meant to provide the solitary protection for 

individual liberty against the state. Berch, supra ¶ 79, at 468. As former 

Chief Justice Ruth McGregor has observed, because the Bill of Rights did 

not yet apply to the states, “the drafters of our state constitution could not 

have operated under the assumption that interpretations of the federal 

constitution would control the rights guaranteed citizens under the state 

constitution.” McGregor, supra ¶ 82, at 275.

¶93 And the dominant school of state constitutional interpretation 

at the time was originalism, so the framers likely expected their handiwork 

to be interpreted on its own terms rather than through federal court 

interpretations of a different constitution. See Jeremy M. Christiansen, 

Originalism: The Primary Canon of State Constitutional Interpretation, 15 Geo. 
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

34

J.L. & Pub. Pol’y 341, 351 (2017); id. at 368–69 (recounting Arizona cases to 

that effect). Our early cases specified that the purpose of rules of 

interpretation is to arrive at the intent of the framers. See, e.g., State v. 

Osborne, 14 Ariz. 185, 204 (1912) (stating that the rule of constitutional 

construction that each clause should be given meaning exists “so that intent 

of the framers may be ascertained and carried out”).

¶94 This Court frequently has interpreted provisions of our state 

constitution more broadly than their federal counterparts, and sensibly, we 

have done so especially where the language is different. Thus, we have 

repeatedly held that our speech protection is broader than that accorded by 

the First Amendment. See, e.g., Brush & Nib Studios, LC v. City of Phoenix,

247 Ariz. 269, 281–82 ¶ 45 (2019); Mountain States, 160 Ariz. at 354–56. 

Likewise, our courts have construed the broader language of article 2, 

section 17 of the Arizona Constitution to provide greater protection against 

eminent domain than does the Fifth Amendment’s takings clause as 

construed by the Supreme Court. See, e.g., Inspiration Consol. Copper Co. v. 

New Keystone Copper Co., 16 Ariz. 257, 259–60 (1914) (stating that court 

decisions construing takings provisions in the federal and other state 

constitutions “are not controlling in this state, and, indeed, lend us but little 

aid” in interpreting art. 2, § 17); Bailey v. Myers, 206 Ariz. 224, 229 ¶ 20 (App. 

2003) (“The federal constitution provides considerably less protection 

against eminent domain than our Constitution provides.”). By contrast, 

where the state constitutional language parallels that of the Bill of Rights, 

we have tended to construe it in tandem with Supreme Court 

interpretations of the federal constitutional provision. See, e.g., State v. 

Carter, 469 P.3d 449, 449 ¶ 1 n.2 (2020) (“The analysis under both the federal 

and state constitutions is the same because the language is virtually 

identical . . . .”).

¶95 Before today, this Court’s analysis of the private affairs clause 

has been scant. Indeed, the Court’s initial analysis of the interplay between 

article 2, section 8 and the Fourth Amendment comprised fewer than fifty 

words. Malmin v. State, 30 Ariz. 258, 261 (1926) (cited supra § 31) (stating 

that the two provisions “are of the same general effect and purpose”). 

Shortly thereafter, the Court emphasized that despite Malmin, “[w]e have 

the right . . . to give such construction to our own constitutional provisions 

as we think logical and proper, notwithstanding their analogy to the 
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

35

Federal Constitution and the federal decisions based on that Constitution.” 

Turley v. State, 48 Ariz. 61, 70–71 (1936).

¶96 By contrast, as the majority acknowledges, this Court has 

construed the second provision of article 2, section 8—the home invasion 

clause—more broadly than the Fourth Amendment. Supra ¶ 32. See State 

v. Ault, 150 Ariz. 459, 464–65 (1986) (rejecting the federal inevitable 

discovery doctrine); State v. Bolt, 142 Ariz. 260, 264–65 (1984) (holding that 

warrantless home entry is per se unlawful absent exigent circumstances). 

In Bolt, the Court was “cognizant of the need for uniformity in 

interpretation,” but recognized that “[o]ur constitutional provisions were 

intended to give our citizens a sense of security in their homes and personal 

possessions.” Id. at 264–65. Thus, it rendered its decision “based upon our 

own constitutional provision, its specific wording, and our own cases, 

independent of federal authority.” Id. at 265. Likewise, in Ault, the Court 

noted that “[u]nlawful entry of homes was the chief evil which the Fourth 

Amendment was designed to prevent,” 150 Ariz. at 463, and that “our 

constitutional provisions were generally intended to incorporate federal 

protections . . . [but] they are more specific in preserving the sanctity of 

homes and in creating a right of privacy.” Id. at 466 (emphasis added) (citation 

omitted).

¶97 These cases, juxtaposed against the Court’s decision today, 

leave us in a curious and perplexing place. On the one hand, this Court has 

construed the home invasion provision of article 2, section 8 more broadly 

than the Fourth Amendment and has rejected Supreme Court doctrines 

inconsistent with that clause, even though both provisions protect homes. 

By contrast, the majority here subsumes the private affairs clause within the 

Supreme Court’s interpretation of the Fourth Amendment, even though the 

Fourth Amendment does not on its face protect against government 

intrusions into private affairs. By what principle does it do so? We are left 

to ponder not only that, but by what standard we will determine when to 

give independent meaning to our state constitutional language in other 

contexts. By our lights, we should at least do so where the language is 

conspicuously different, and certainly where (as here) no analogous 

provision exists in the federal constitution. Otherwise, the necessary 

consequence is to diminish constitutional protections.
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

36

¶98 It is especially hazardous to hitch the meaning of our 

constitution to the Supreme Court’s Fourth Amendment jurisprudence, 

which the majority charitably depicts as “uniform and sound,” supra ¶ 21, 

but is in fact characterized by confusion and constant change. The opacity 

of this jurisprudence is visible in our recent decision in State v. Jean, in which 

we attempted to determine whether the Supreme Court’s Fourth 

Amendment precedent requires a warrant for police to install a GPS device 

on a commercial vehicle under the facts of the case. 243 Ariz. 331 (2018). 

The case generated five separate opinions, including a majority opinion 

with different parts written by two different justices who disagreed with 

the parts of the opinion they did not write. Indeed, even the lodestars 

invoked by the majority here—Smith v. Maryland, 442 U.S. 735 (1979), and 

United States v. Miller, 425 U.S. 435 (1976)—are called into question, to an 

unknown extent, by Carpenter v. United States, 138 S. Ct. 2206 (2018).

¶99 We should not follow that long and winding road of Fourth 

Amendment jurisprudence to its uncharted destination. See State v. Ingram,

914 N.W.2d 794, 797–98 (Iowa 2018) (holding that “we encourage stability 

and finality in law by decoupling Iowa law from the winding and often 

surprising decisions of the United States Supreme Court,” and “take the 

opportunity to stake out higher constitutional ground”). When the 

constitutions converge, it makes sense to take Supreme Court decisions into 

account and place value on uniform application. But where the language 

of the two constitutions differs—and especially where our provision does 

not appear in the federal constitution in any manner—relying on the 

Supreme Court to determine our constitutional meaning deprives our 

citizens of the precious freedoms their forebears proclaimed when they 

embraced a wider conception of liberty than the federal constitution. After 

all, Supreme Court justices do not take an oath to uphold the Arizona 

Constitution. But we do.

II.

¶100 This is the first case to attach the Supreme Court’s Fourth 

Amendment third-party doctrine to the Arizona Constitution. A fair 
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

37

independent reading of the text and intent of article 2, section 8 shows the 

protection of private affairs is incompatible with that doctrine.

¶101 While the Fourth Amendment specifies that “persons, houses, 

papers, and effects” are protected, article 2, section 8 more broadly protects 

“private affairs.” And while the Fourth Amendment prohibits 

“unreasonable” searches and seizures, article 2, section 8 categorically 

prohibits any disturbance “without authority of law.” By the provision’s 

clear terms, then, if the state wishes to invade a person’s private affairs, it 

may do so only with authority of law, which makes the definition of 

“private affairs” determinative.

¶102 This Court gives provisions in law “their ordinary meaning 

unless it appears from the context or otherwise that a different meaning is 

intended.” Arizona ex rel. Brnovich v. Maricopa Cnty. Cmty. Coll. Dist. Bd., 243 

Ariz. 539, 541 ¶ 7 (2018). The dictionary definition of “private,” both now 

and at the time of Arizona’s constitutional adoption, includes anything 

concerning an individual or group that is not “intended to be known 

publicly.” Private, Merriam-Webster, https://www.merriamwebster.com/dictionary/private (last visited Jan. 16, 2020); see also Harry 

Thurston Peck, New Websterian 1912 Dictionary Illustrated 649 (defining 

private as “not public” and “peculiar to one’s self.”). Likewise, “affairs” 

means “personal business.” Affairs, Merriam-Webster; accord Peck at 17.

¶103 The majority similarly defines “private” as “affecting or 

belonging to private individuals, as distinct from the public generally”; and 

“affairs” as “a person’s concerns in trade or property; business.” Supra¶ 33. 

That is the first and only time the majority grapples with the original 

meaning of “private affairs,” and it ultimately disposes of the term as 

“ambiguous,” id., never to be raised again.

¶104 True, “private affairs” is not unambiguous. But this Court 

does not throw up its hands in the face of ambiguity: if 

“a constitutional provision is not clear on its face, we can use extrinsic 

evidence to show the intent of the framers and the electorate that adopted 

it.” Heath v. Kiger, 217 Ariz. 492, 495 ¶ 9 (2008). And significant, 

uncontroverted evidence suggests we should read article 2, section 8 in a 

way that gives effect to its text.
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

38

¶105 “Private affairs” was a commonly used term during the 

period preceding our constitution’s adoption, and the protection of private 

affairs was a major preoccupation of contemporary legislatures, courts, and 

scholars. See, e.g., Samuel D. Warren & Louis D. Brandeis, The Right to 

Privacy, 4 Harv. L. Rev. 193 (1890). A review of these efforts concludes that 

“‘[m]ind your own business’ was an eleventh commandment in nineteenth 

century America.” The Right to Privacy in Nineteenth Century America, 94 

Harv. L. Rev. 1892, 1904 (1981).

¶106 In particular, Americans in the twilight of the Nineteenth and 

dawn of the Twentieth Centuries sought to keep what was private from 

becoming public. A major concern was preventing the disclosure of private 

information when third parties, such as telegraph operators, were entrusted 

with transmission or delivery and the “messages were necessarily read by 

the operators who sent and received them.” Id. at 1901–02. Similarly, 

Congressman James Garfield championed legislation against disclosure of 

census information, so that an individual’s “private affairs, the secrets of 

his family and his business,” would not be revealed. Id. at 1905. The 

shielding of tax returns, in the words of the newspaper The Nation, 

protected “the ‘natural and inalienable right’ of everybody to keep his 

affairs to himself.” Id. at 1906. Courts likewise protected the confidentiality 

of certain public records to prevent making “public men’s private affairs.” 

Id. at 1907 (quoting Buck & Spencer v. Collins, 51 Ga. 391, 397 (1874)).

¶107 These examples illustrate that “private affairs” were 

understood in the early Twentieth Century to broadly encompass both 

personal and business matters, even if transmitted through third parties, 

thus making Arizona’s constitutional provision irreconcilable with the 

later-emerging federal “third-party” doctrine allowing any information 

divulged to a third party to be obtained by the government without a 

warrant.

¶108 The protection of private affairs was also reflected in local 

concerns. In 1912, the year our constitution was adopted, the Arizona 

Republican editorialized against a proposal to disclose the names of their 

subscribers, condemning it as a “perniciously inquisitorial” effort to gain 

access to “private business affairs and financial affairs.” Sandefur, supra
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

39

¶ 81, at 731 n.47. That same year, the newspaper warned against 

congressional investigations of alleged monopolies because “attacks upon 

corporate credit and private affairs . . . ought to be deprecated.” Id. at 731. 

It appears clear that the common meaning of “private affairs” in statehoodera Arizona encompassed the type of business transactions that would be 

swept up by the third-party doctrine many decades later.

¶109 Indeed, this meaning of private affairs and its inclusion 

within our constitutional protections is manifested even within Fourth 

Amendment jurisprudence at the turn of the century. In Boyd v. United 

States, the Court invalidated, under the Fourth and Fifth Amendments, 

federal laws pursuant to which business invoices were obtained without a 

warrant. 116 U.S. 616 (1886). The Court held that the principles animating 

those amendments “apply to all invasions on the part of the government 

and its employe[e]s of the sanctity of a man’s home and the privacies of 

life,” holding that obtaining the business records “is the invasion of his 

indefeasible right of personal security, personal liberty, and private 

property.” Id. at 630. Seemingly anticipating a decision like today’s, the 

Court urged “that constitutional provisions for the security of person and 

property should be liberally construed. A close and literal construction 

deprives them of half their efficacy, and leads to gradual depreciation of the 

right, as if it consisted more in sound than in substance.” Id. at 635; see also 

Ex parte Jackson, 96 U.S. 727, 733 (1877) (holding that sealed mail cannot be 

opened without a warrant).

¶110 Given that the framers of article 2, section 8 intended to 

incorporate the protections of the Fourth Amendment, see Ault, 150 Ariz. 

at 463, these decisions form at minimum the baseline for the rights 

protected. That our framers understood that private affairs meant one’s 

business, including transactions with others, is uncontestable. Surely it 

would surprise the framers to know that the protections they embraced 

would be subject to severe diminution through Supreme Court 

interpretations of different provisions in the federal constitution many 

decades later.

¶111 Yet the majority asserts that the private affairs clause 

“protects a privacy interest . . . only if society is prepared to accept such an 

expectation of privacy as reasonable.” Supra ¶ 41. That amorphous 
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

40

standard derives not from our constitutional text, but from a concurring 

opinion in a Supreme Court decision applying the Fourth Amendment, 

Katz v. United States. 389 U.S. 347, 361 (1967) (Harlan, J., concurring).1 In so 

doing, the majority replaces an objective state constitutional command with 

a subjective standard whose meaning changes over time to reflect an 

evolving societal consensus.2

¶112 That standard has no textual or historical foundation in article 

2, section 6. The framers of that provision informed us what society was 

prepared to recognize when our constitution was adopted: that any 

invasion of private affairs requires authority of law. And for us, then, the 

proper inquiry is whether a particular matter constitutes a private affair.

1 In contrast to the majority here, however, Justice Harlan repeatedly 

expressed an “aversion to national uniformity,” which he rejected as 

inconsistent with our system of federalism that protects pluralism and 

individual rights. See J. Harvie Wilkinson III, Justice John M. Harlan and the 

Values of Federalism, 57 Va. L. Rev. 1185, 1196 (1971) (citing, inter alia, Duncan 

v. Louisiana, 391 U.S. 145, 182 n.21 (1968) (Harlan, J., dissenting) (disdaining 

“the needless pursuit of uniformity”) and Ker v. California, 374 U.S. 23, 45 

(1963) (Harlan, J., concurring) (expressing concern over a “constitutional 

straitjacket”)). 

2 Even at the federal level, the Katz formulation has been subjected 

to substantial criticism. See, e.g., Carpenter, 138 S. Ct. at 2244 (Kennedy, 

Thomas, and Alito, JJ., dissenting) (“That the Katz test departs so far from 

the text of the Fourth Amendment is reason enough to reject it. But the Katz 

test also has proved unworkable in practice.”); United States v. Jones, 565 

U.S. 400, 407 (2012) (stating that courts must, at minimum, preserve the 

degree of privacy that existed when the Fourth Amendment was adopted, 

and that Katz does not provide the exclusive means to determine that 

protection). Remarking on the Katz test’s inherent subjectivity, Justice 

Scalia observed that it “bear[s] an uncanny resemblance to those 

expectations of privacy that this Court considers reasonable,” and “has no 

plausible foundation in the text of the Fourth Amendment.” Minnesota v. 

Carter, 525 U.S. 83, 97 (1998) (Scalia, J., concurring).
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

41

¶113 The third-party doctrine is the progeny of Katz. The majority 

explains it aptly: 

[A] person has no expectation of privacy in information he 

voluntarily discloses to third parties, even if there is an 

assumption it will be used only for a limited purpose . . . . 

And, because it is no longer private, the government may 

obtain such information from a third party without triggering 

the Fourth Amendment’s protections. 

Supra ¶ 14.

¶114 Whatever the continuing vitality of this doctrine following 

Carpenter in the Fourth Amendment context, we should reject it here, just 

as this Court rejected Supreme Court doctrines that did not reflect the text 

and intent of article 2, section 8’s home invasion clause in Ault and Bolt. 

Whereas the Fourth Amendment warrant protection applies only where a 

reasonable expectation of privacy exists, our protection applies to all 

private affairs. As reflected by the types of business transactions that 

animated article 2, section 8’s framers, affairs can still be considered private 

even if they are shared by two or more people in a position of trust.

¶115 For that reason, the Washington Supreme Court, whose 

private affairs provision is both identical to and the source of ours,3 has 

rejected the Fourth Amendment “reasonable expectation of privacy” 

construct in interpreting its provision. “While we may turn to the Supreme 

Court’s interpretation of the United States Constitution for guidance in 

establishing a hierarchy of values and principles under the Washington 

Constitution, we rely, in the final analysis, upon our own legal foundations 

in determining its scope and effect.” State v. Myrick, 688 P.2d 151, 153 

(Wash. 1984). Whereas under Fourth Amendment jurisprudence “the 

3 We have often looked for guidance to the Washington Supreme 

Court’s decisions when interpreting similar provisions in our constitutions. 

See, e.g., Mountain States, 160 Ariz. at 355 (“[O]ur recognition of the broad 

protection for speech in Arizona conforms with the Washington Supreme 

Court’s reading of Washington Constitution art. 1, § 5, the model for 

Arizona’s art. 2, § 6.”).
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

42

inquiry is whether the defendant possessed ‘a reasonable expectation of 

privacy,’” id. (quoting Katz, 389 U.S. at 357), “under the Washington 

Constitution the relevant inquiry for determining when a search has 

occurred is whether the state unreasonably intruded into the defendant’s 

‘private affairs.’” Id. at 153–54.

¶116 Nonetheless, several other states have rejected the third-party 

doctrine in construing their own constitutions even when they parallel the 

Fourth Amendment. See, e.g., State v. Walton, 324 P.3d 876, 906 (Haw. 2014); 

State v. Thompson, 810 P.2d 415, 418 (Utah 1991); Shaktman v. State, 553 So.

2d 148, 151 (Fla. 1989); State v. Thompson, 760 P.2d 1162, 1165 (Idaho 1988); 

People v. Sporleder, 666 P.2d 135, 141–42 (Colo. 1983); Commonwealth v. 

DeJohn, 403 A.2d 1283, 1289 (Pa. 1979). Notably, all those decisions interpret 

constitutions that do not contain a private affairs provision.

¶117 Indeed, the Supreme Court itself has questioned the 

foundations of the third-party doctrine in the information technology era. 

In declining to extend Smith and Miller to certain cell phone records under 

control of a third party, the Court noted the “seismic shifts in digital 

technology” that have made cell phones and the data they contain and 

transmit “‘such a pervasive and insistent part of daily life’ that carrying one 

is indispensable to participating in modern society.” Carpenter, 138 S. Ct. 

at 2220 (quoting Riley v. California, 573 U.S. 373, 385 (2014)). As with 

Internet Protocol (“IP”) addresses, “there is no way to avoid leaving behind 

a trail of location data. As a result, in no meaningful sense does the user 

voluntarily ‘assume[] the risk’” of having the data turned over to 

government officials. Id. (quoting Smith, 442 U.S. at 745).

¶118 Justice Gorsuch made the point even more directly: 

Even our most private documents—those that, in other eras, 

we would have locked safely in a desk drawer or destroyed—

now reside on third-party servers. Smith and Miller teach that 

the police can review all of this material, on the theory that no 

one reasonably expects any of it will be kept private. But no 

one believes that, if they ever did. 
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

43

Id. at 2262 (Gorsuch, J., dissenting). Justice Gorsuch added that “I do not 

agree with the Court’s decision to keep Smith and Miller on life support and 

supplement them with a new and multilayered inquiry that seems to be 

only Katz-squared.” Id. at 2272.

¶119 Whatever the scope and persistence of the third-party 

doctrine after Carpenter, or the implications of that case for the facts here, 

the Carpenter dissenters aptly remark that the decision “destabilizes longestablished Fourth Amendment doctrine,” id. at 2247 (Alito, J., dissenting) 

and will “keep defendants and judges guessing for years to come” id. 

at 2234 (Kennedy, J., dissenting) (citation omitted); see also id. at 2213–14 

(main opinion) (“[N]o single rubric definitively resolves which expectations 

of privacy are entitled to protection.”).

¶120 The majority here prizes national uniformity even where 

Arizonans have chosen a markedly different approach in their organic law. 

That priority is misplaced given that in our federalist system, “state 

constitutions are our basic charters of state governance.” Simpson v. Miller,

241 Ariz. 341, 345 ¶ 8 (2017); accord State v. Wein, 244 Ariz. 22, 32 ¶ 39 (2018) 

(Bolick, Gould, and Lopez, JJ., dissenting); see also Jeffrey S. Sutton, 51 

Imperfect Solutions: State Constitutions and the Development of American 

Constitutional Law 42–83 (2018) (highlighting greater state constitutional 

protections for the rights of criminal defendants). We do Arizonans a 

disservice by elevating the value of discordant national uniformity over 

enforcement of our own constitution and the greater clarity and protection 

it affords.

III.

¶121 The majority asserts that a “clear consensus” of state courts 

hold that their state constitutions do not protect IP addresses or ISP 

subscriber information. Supra ¶ 47. Unfortunately, those decisions do little 

to aid us, for none of the constitutions at issue contains a private affairs 

clause. Applying the language and intent of our state constitutional 

provision, rather than decisions more than a half-century later applying 

markedly different constitutional language, we conclude that the data here 
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

44

is protected by article 2, section 8’s private affairs clause and may be 

obtained by the government only with authority of law.4

¶122 We entrust private information to third parties every day:

every time we use a credit card, provide our Social Security number, use a 

security card reader, mail a saliva sample to a genetics lab, make a bank 

deposit or withdrawal, use a password to enter a website, or even send an 

email. Even under a reasonable expectation of privacy analysis, “[p]eople 

often do reasonably expect that information they entrust to third parties, 

especially information subject to confidentiality agreements, will be kept 

private.” Carpenter, 138 S. Ct. at 2263 (Gorsuch, J., dissenting). Indeed, 

sharing such information often is a precondition to engaging in commerce. 

The majority points to the widespread third-party data collection on the 

internet, supra ¶¶ 42-44, but that observation is simply irrelevant as the 

private affairs clause restricts government action. The notion that anything 

one must share for purposes of voluntary transactions is thereby subject to 

government inspection would eviscerate any meaningful notion of privacy.

¶123 The private affairs clause “encompasses those legitimate 

privacy expectations protected by the Fourth Amendment; but is not 

confined to the subjective privacy expectations of modern citizens who, due 

to well publicized advances in surveillance technology, are learning to 

expect diminished privacy in many aspects of their lives.” Myrick, 688 P.2d 

at 154. “In determining whether a certain interest is a private affair . . . a 

central consideration is the nature of the information sought—that is, 

whether the information obtained via the governmental trespass reveals 

4 Because we would decide the case on independent and adequate 

state grounds, it is unnecessary to reach the Fourth Amendment issue. Ault,

150 Ariz. at 466. We note, however, that the third-party doctrine may not 

apply given that Mixton did not provide the information obtained by the 

government to a single entity. No employee at Kik knew Mixton’s identity, 

only his IP address; and no employee at the ISP could have connected 

Mixton’s IP address to the postings. The police aggregated information, 

rather than retrieving it from a third party to which Mixton conveyed it in 

its totality. Cf. Bond v. United States, 529 U.S. 334, 338–39 (2000) (holding 

that physical manipulation of luggage was a search, even though the 

luggage itself was exposed to the public in the storage rack of a bus).
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

45

intimate or discrete details of a person’s life.” State v. Jorden, 156 P.3d 893, 

896 ¶ 8 (Wash. 2007). When the search “involves the gathering of personal 

information by the government, this court has also considered the purpose 

for which the information sought is kept, and by whom it is kept.” Id. at 

¶ 9.

¶124 Thus, courts that have rejected the Supreme Court’s 

reasonable expectation of privacy analysis have focused not on societal or 

subjective expectations of privacy, but instead have made an objective 

determination about whether the information obtained reveals intimate or 

discrete details of a person’s life. See, e.g., Myrick, 688 P.2d at 153–54. This 

is in keeping with the meaning of private affairs and the provision’s 

historical intent and context. Moreover, limited disclosure of personal 

information to a private third party, as opposed to the public generally, 

does not give the government carte blanche access to that information. See, 

e.g., Gunwall, 720 P.2d at 816 (citing State v. Hunt, 450 A.2d 952, 956 (N.J. 

1982)) (holding that telephone records are a private affair because, among 

other things, telephones are a necessary component of public life and the 

disclosure of information to the telephone company was made for a limited 

purpose and not for release to other persons for other reasons); People v. 

Chapman, 679 P.2d 62, 67 (Cal. 1984) (holding that a telephone company 

“customer’s expectation of privacy in information gathered by the company 

during the regular course of its business must be honored as a reasonable 

one. That expectation cannot be deemed to have been abandoned because 

the customer is required to disclose” such information).

¶125 The Washington Supreme Court has construed the identical 

language of its constitution that way. “Given the realities of modern life, 

the mere fact that an individual shares information with another party and 

does not control the area from which that information was accessed does 

not place it outside the realm” of the private affairs clause. State v. Hinton, 

319 P.3d 9, 15 ¶ 17 (Wash. 2014). In Hinton, the Washington Supreme Court 

ruled that police need a warrant to inspect text messages. The Court 

acknowledged that those who share personal information assume the risk 

that it will be disclosed by a third party, “[b]ut that risk should not be 

transposed into an assumed risk of intrusion by the government.” Id.
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

46

¶126 Washington State courts have applied those principles under 

the private affairs provision to forbid warrantless inspections in a broad 

variety of contexts, even garbage. State v. Boland, 800 P.2d 1112, 1116 (Wash. 

1990) (holding that although someone placing garbage can expect 

scavengers to snoop through it, “[p]eople reasonably believe that police will 

not indiscriminately rummage through their trash bags to discover their 

personal effects” (quoting State v. Tanaka, 701 P.2d 1274, 1275 (Haw. 1985)); 

see also State v. Jorden, 156 P.3d 893 (Wash. 2007) (motel registry); State v. 

Miles, 156 P.3d 864, 869 (Wash. 2007) (bank records, as they “potentially 

reveal[] sensitive information”); State v. Butterworth, 737 P.2d 1297 (Wash. 

Ct. App. 1987) (unpublished telephone listing). None of these likely would 

be shielded from police inspection under the pre-Carpenter third-party 

doctrine, but all were deemed private affairs under Washington State’s 

private affairs clause. These cases hold that where private information is 

disclosed to limited persons for limited purposes, it retains its private 

character for purposes of constitutional protection against searches without 

authority of law.

¶127 Adopting this framework for interpreting the identical 

language of our private affairs clause would provide greater clarity, 

consistency, and predictability than the evolving and uncertain postCarpenter Fourth Amendment framework. It adheres to both the text of the 

private affairs clause and the intent of its framers to include business 

transactions within its protection. Applying this framework, we would not 

have to—as the majority has undertaken to do conscientiously yet 

unnecessarily—forecast what privacy interests society is prepared to 

accept, assess whether a person has a reasonable expectation of privacy 

with an anvil on the scale if the person has conveyed that information to a 

third party in any fashion, or delve into a fact-based determination of the 

nature of the technology or precisely what information it contains or emits. 

Rather, in this context, we would ask (1) whether the search encompasses 

intimate details of a person’s life, and (2) whether the disclosure of 

information was made for a limited purpose and not for release to other 

persons for other reasons. If those two criteria are met, the information is a 

private affair and the government may obtain it only with authority of law.

¶128 Here, both criteria are plainly met. The IP address and ISP 

information at issue, standing alone, do not disclose intimate personal 
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

47

information. But when combined (in this case through two different 

subpoenas), they allow the police to determine which websites a person has 

visited. That information was not made available to the public (indeed, in 

combination it was not made available to anyone). Rather, the information 

shared through an IP address and with an ISP is necessary to obtain access 

to the internet. It is furnished for a limited purpose with the expectation it 

will not be shared with others, and certainly not with the government. IP 

addresses and ISP location data are not normally held out to the public but, 

like a credit card, disclosed to the provider to consummate the transaction. 

See Joshua J. McIntyre, Balancing Expectations of Online Privacy: Why Internet 

Protocol (IP) Addresses Should be Protected as Personally Identifiable Information, 

60 DePaul L. Rev. 895, 900 (2011) (noting that, unlike a physical letter, which 

can be mailed without a return address, internet browsing requires leaving 

sender data).

¶129 In this regard, the New Jersey Supreme Court’s opinion in 

State v. Reid is especially instructive. 945 A.2d 26 (N.J. 2008). The court 

recognized that “it is hard to overstate how important computers and the 

Internet have become to everyday, modern life. Citizens routinely access 

the Web for all manner of daily activities: to gather information, explore 

ideas, read, study, shop, and more.” Id. at 33. As they do so, they transmit 

a numerical IP address to the websites they visit. Only an ISP, however, 

can translate an IP address into a user’s name (or, in this case, a street 

address). Having that combined information, “one can track a person’s 

Internet usage. ‘The government can learn the names of stores at which a 

person shops, the political organizations a person finds interesting, a 

person’s . . . fantasies, her health concerns, and so on.’” Id. (quoting Daniel 

Solove, The Future of Internet Surveillance Law, 72 Geo. Wash. L. Rev. 1264, 

1287 (2004)). But key for our purposes is the court’s recognition that “the 

nature of the technology requires individuals to obtain an IP address to 

access the Web. Users make disclosures to ISPs for the limited goal of using 

that technology and not to promote the release of personal information to 

others.” Id. Construing the New Jersey Constitution, whose provision 

mirrors the Fourth Amendment, the court held that “users are entitled to 

expect confidentiality under these circumstances.” Id. Even though New 

Jersey’s constitution has no private affairs clause, this analysis dovetails 

with our constitutional text and intent.
STATE V.MIXTON

JUSTICE BOLICK, joined by CHIEF JUSTICEBRUTINEL and VICE CHIEF

JUSTICE TIMMER, Dissenting

48

¶130 The majority suggests that even if such information is a 

private affair, the person sharing it must take extraordinary precautions, 

such as encryption, or it loses its private character. We have expressly 

rejected that argument in the Fourth Amendment context. State v. Peoples, 

240 Ariz. 244, 248–49 (2016) (rejecting the arguments that leaving a 

cellphone in plain view, or failing to password-protect it, allowed police to 

inspect its contents). Rather, we would adhere to the view that when police 

seek information about the intimate details of a person’s life by obtaining 

information that was shared in limited fashion with persons in a position 

of trust, rather than with the public at large, the private nature of the 

transaction is maintained to prevent police inspection without a warrant.

¶131 The majority does not reach the question of what constitutes 

“authority of law” under these circumstances, so neither do we. But 

assuming that a warrant would be necessary, it should not be difficult to 

obtain one in this case. Cf. Riley, 573 U.S. at 401 (noting that technology has 

made “the process of obtaining a warrant itself more efficient”). As Judge 

Eckerstrom noted, “[t]he warrant requirement would have posed no 

impediment to the investigation of the instant case. Mixton’s . . . 

correspondence with the undercover officer, together with the attachment 

of child pornography to that correspondence, provided ample basis to 

secure a warrant for Mixton’s personal identifying information.” State v. 

Mixton, 247 Ariz. 212, 230 ¶ 47 n.15 (Eckerstrom, J., concurring in part and 

dissenting in part); accord id. at 226 ¶ 32 (majority opinion). Regardless of 

the burden the government might face in securing such permission, the 

protection of having a neutral judge determine the propriety and scope of 

a search is essential. That protection becomes more crucial, not less, as 

information technology and our dependence upon it grows.

¶132 Our constitution’s framers aimed, as plainly as they could, to 

protect our private affairs from unsupervised government scrutiny. The 

majority’s non-textual opinion drains meaning from this essential 

constitutional protection. For these reasons, and with great respect to our 

colleagues, we dissent.