Idaho Gets Privacy Rights, Right... Maybe!

In my blogs, I usually talk about how governments get things wrong. Here’s a story where government gets things correct… at least in Idaho… well, somewhat.

Governor, Brad Little, signed bill S.1326 this week. The bill is a major step toward restoring protections for the state’s landowners. The first-of-its kind law prohibits most (I feel the need to emphasize “most”) government agents from entering any private land that is closed to the public without a warrant, consent, or a recognized emergency. Unlike most bills, there was strong bipartisan support. The only thing that leaves me somewhat leery… is how “recognized emergency” might be determined. To me, that should be defined as imminent threat of death or threat of great harm.

Alasdair Whitney, Legislative Counsel for the Institute for Justice (IJ) stated, “Private land is exactly that; it’s private. It should not be treated as open territory for warrantless searches. Idaho has made it clear that if the government wants to step onto private land to investigate or search for wrongdoing, it must first go to a judge and show probable cause. This law protects law-abiding landowners while preserving law enforcement’s ability to do its job the right way.”

Prior to such a bill, government agents, basically everywhere, were able to come onto private land under the “open fields doctrine,” - something I wrote about in a deportation blog. That doctrine was rooted to the age of Prohibition. During those times, government agents could legally invade private land looking for illicit alcohol and stills. In Hester v. United States, federal agents were permitted to hide on someone’s private land to see if they were selling alcohol and give chase when they saw a person hand someone a bottle. Despite the obvious wording of the Fourth Amendment, the Supreme Court at the time, opined that privacy did not apply to private land because the Amendment refers to ‘persons, houses, papers, and effects.’ They did not consider private land to be ‘effects’. That one case, almost overnight in government terms, eliminated all protections for most privately-owned land in the United States.

Thankfully, Idaho has taken steps to allegedly correct this injustice. Sadly, though, there are some caveats that don’t give the bill a lot of strength, such as:

1871-06 “(6) The penalties provided in this section shall not be applicable to any county sheriff or deputies, municipal police officers, or Idaho state police” and…

1872-08 “(6) [It doesn’t] Limit lawful aerial observation conducted in compliance with section 21-213” and… a whole host of other legitimate reasons that could falsely be used to invade privacy.

So while the Idaho Governor signed a feel good bill, supposedly correcting an injustice, it doesn’t mean its citizens are as fully protected as they should be. Nor are other states’ citizens protected. Hester vs. United States still exists for federal agents and other states’ government agents. However, if one state can make minor fixes, so can others. Privacy rights will never be as strong as our forefathers intended, but every little step in protection helps citizens against injustice.

Source used: Institute for Justice