Oregon Supreme Court Rules Internet Browsing Activity Protected Under State Constitution

The Oregon Supreme Court ruled that tracking the internet activity of 73-year-old Randall de Witt Simons violated the Oregon Constitution's protections against unreasonable searches and seizures, overturning a Lane County conviction in a decision that reshapes digital privacy rights statewide.

Simons had accessed the internet using a publicly available Wi-Fi network operated by a local A&W restaurant near his home, and access to that network required users to acknowledge terms of service. Simons was first arrested in 2019, after the business reported suspicious activity on its public Wi-Fi network and police instructed it to record his internet activity over a one-year period. That surveillance eventually provided the foundation for a warrant to search Simons's home laptop, leading to his arrest and conviction on multiple counts of encouraging child sexual abuse.

The opinion, authored by Justice Bronson D. James, held that Article I, section 9, of the Oregon Constitution recognizes a privacy right in internet browsing activity that does not simply vanish because a person connects through a public network. The Court made clear that "the focus of Article I, section 9, is not on individual expectations of privacy but, rather, on the expectations that society sets for government conduct." It further reasoned that "the mere fact that a person accesses the internet through a public network does not eliminate their Article I, section 9, right to privacy in their online activities" — a protection that holds even when the network's terms of service explicitly warn of monitoring and cooperation with law enforcement.

Both lower courts had allowed the evidence to stand. The Oregon Court of Appeals affirmed in part, concluding Simons had no cognizable privacy interest in activity conducted on a third-party network. The Supreme Court ruled the year-long monitoring constituted a warrantless search, which invalidated the conviction, and Simons's case will now return to Lane County Circuit Court.

The ruling was not unanimous. Justice Stephen K. Bushong concurred in part and dissented in part, questioning whether a traditional expectation of privacy exists on a public Wi-Fi network, but ultimately agreed that the scope and duration of the surveillance crossed constitutional limits.

The ruling centered on whether the year-long, warrantless tracking of Simons's internet activity violated the Oregon Constitution's protections against unreasonable searches and seizures. Because the surveillance was conducted without a warrant and was deemed attributable to the state, the evidence it produced should have been suppressed from the outset. Without it, the conviction could not stand.

Justice Bronson D. James has served on the Oregon Supreme Court since January 1, 2023, and is recognized as a leading authority on search and seizure in the realm of digital information. His opinion in *State v. De Witt Simons* now sets a statewide precedent: Oregonians who use public Wi-Fi, whether at a restaurant, library, or coffee shop, retain constitutional privacy protections in their browsing activity regardless of what any terms-of-service agreement says.