Why The 'Third Party Doctrine' Undermines Online Privacy Protections
from the fourth-amendment dept
There’s been an interesting discussion going on between my colleague Jim Harper and legal scholar Orrin Kerr about the third party doctrine, the legal principle that, in effect, you lose your Fourth Amendment rights when you relinquish information to a third party. The doctrine has become increasingly important with the rise of modern technology because we now entrust a host of private data — including our email, cell phone calling data, credit card transactions, and more — to private companies, and the third party doctrine would seem to suggest that Fourth Amendment protections would not extend to such information. A couple of weeks ago, Kerr posted a draft paper defending the doctrine, arguing that it brings clarity and simplicity to privacy law and avoids the need for “a complex framework of sui generis rules.” Jim strongly disagrees with Kerr, arguing that the third party doctrine was always misguided and that recent technological changes have simply made these flaws more evident.
Jim points out that when the Fourth Amendment was drafted, the vast majority of peoples’ private activities occurred inside the home, and so it made sense to make the home focus of Fourth Amendment protections. But as people began conducting more and more of their lives outside of the home, with telephones, email, credit cards, and so forth, using the four walls of the home as the boundary for Fourth Amendment protection made less and less sense. And indeed, that’s precisely what the Supreme Court recognized in the famous 1967 case of Katz v. United States, which held that the Fourth Amendment applied to wiretapping of public pay phones because the Fourth Amendment protects “people, not places.” The same principle ought to apply to our emails, credit card transactions, and other data of a private nature: what matters is not where the data is located or who has custody over it, but whether the subject of surveillance had a reasonable expectation of privacy in his use of that data.
Kerr responded that “the real judges and Justices that make the rules” have recently shown greater sympathy for Kerr’s view of the Fourth Amendment as a narrow doctrine of criminal procedure rather than a broad charter for protecting peoples’ privacy. I agree with Jim that this isn’t really responsive to his argument. Whether judges currently do see things Kerr’s way tells us little about whether they ought to view them that way. Judges have gotten the Fourth Amendment wrong in the past. After all, Katz overruled Olmstead v. United States, a decision that had allowed warrantless wiretapping almost four decades earlier. So the fact that the courts have not yet extended Fourth Amendment protections to email or other digital records doesn’t prove that a future court won’t recognize that such information is as crucial to personal privacy as paper records and phone calls. Sticking with the third party doctrine would make the Fourth Amendment less and less relevant as technology changes because more and more private information to be held by third parties. If we want the Fourth Amendment to continue to be an effective protection for peoples’ privacy, and I think we do, it needs to be continuously updated to reflect changing technological realities.