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Privacy Interests in Records Kept by Third-Parties

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This wikilog article is a draft, it was not published yet.

by: Ryan Scott • October 17, 2016 • no comments

In State v. Ghim, the Oregon Supreme Court held that a defendant may have a privacy interest in “information that a third party collects and maintains for its own use.” Ghim at 436.

However, the issue is highly driven by context. Interestingly, the state – in Ghim – did not argue that as a matter of law, a defendant never had a privacy interest in documents held by third-parties. All sides agreed that whether a privacy interest existed was one that:

can vary, according to the parties’ arguments, depending on contractual and other restrictions that apply to the third party’s use and dissemination of the information, general societal norms, and the level of generality with which the government analyzes the data. See State v. Howard/Dawson, 342 Or 635, 640-41, 157 P3d 1189 (2007) (relying on the absence of any property interest or subconstitutional right or relationship that restricted a garbage company’s handling of trash once the company collected it in holding that the defendants had no protected privacy interest under Article I, section 9).”

Ghim at 437.

It is worth noting that this is an extraordinary departure from past holdings of the Court of Appeals. When Ghim was before the lower court, the Oregon Court of Appeals held:

That result is compelled by decisions of the Supreme Court and this court that have consistently held that, under Article I, section 9, an individual has no protected privacy interest in business records held by a third-party service provider—whether a phone carrier, an Internet provider, or a hospital.

State v. Ghim, 267 Or App 435 (2014), aff’d on other grounds, 360 Or 425 (2016).

In light of the stark contrast between the courts’ analyses of the same issue, the Court of Appeals analysis can no longer be considered good law.