by Hon. Simeon R. Acoba, Jr.
The valuable discussion in the article "Confidentiality in the Cloud: The Ethics of Using Cloud Services in the Practice of Law" in the August 2014 edition of the Hawaii Bar Journal also brings the interrelationship between federal and state constitutions to the forefront. It is imperative to recognize that two governments coexist in each state and that thus both the federal and the respective state constitution are operative. In this context, the existence of two constitutions - the federal constitution and the state constitution - in one jurisdiction can result in contrasting outcomes in federal and in state courts, although arising out of the same or similar factual circumstances.
Where guarantees of individual rights are concerned, a state may afford individuals within the state boundaries greater or broader rights than the United States Supreme Court extends to individuals in its interpretation of similarly or identically worded provisions in the federal bill of rights, unless the state decision would conflict with the federal constitution or a federal statute. Thus a review of constitutional law pertinent within a state would be incomplete without reference to decisions of the state supreme court; for federal law may not represent the entirety of the law applicable or dispositive in a particular case.
As part of its analysis, the "confidentiality" article included a section on the "evolving right of privacy in the digital age." That section referred to the lack of privacy protection under federal law in United States v. Miller, 425 U.S. 435 (1976) and Smith v. Maryland, 442 U.S. 735 (1979), and to Justice Sotomayor's prescient concurring opinion in United States v. Jones, — U.S. —, 132 S.Ct. 945, 957, (2012) (Sotomayor, J., concurring) and their impact on disclosures of confidential material to third persons in "cloud computing or similar technologies."1
It remains to be pointed out that Miller and Smith have been rejected by the Hawaii Supreme Court under the Hawaii constitution and that the import of Justice Sotomayor's concurrence is one of the bases for Hawaii's recent reformulation of a privacy test. See Part II: Motion to Suppress in State v. Walton, 133 Hawaii 66, 91-100, 324 P.3d 876, 901.10 (2014). (All subsequent references to Walton are to Part II: Motion to Surpress). That test holds that an expectation of privacy would be reasonable where disclosure to third persons was for a limited purpose and where in our technological age individuals, of necessity, disclose such information to third parties in the ordinary course of affairs. Id. at 98, 324 P.3d at 908.
Thus, the federal court holdings in Miller and Smith and the traditional federal privacy test's lack of protection for disclosures to third persons would not govern in state proceedings. In Waltoat contrary to Miller and Smith, privacyn, the Part II majority indicated th would be protected under Art. 1 sec. 7 of the Hawaii Constitution2 and that Justice Sotomayor's concurrence was persuasive. Thus, as opposed to the federal courts, Hawaii would not follow Miller or Smith.3
State courts may opt to invoke the state constitution and reject U. S. Supreme Court opinions as inconsistent with the core purpose of a parallel state...
