Computers, Privacy & the Constitution

The Third-party Doctrine: protect us or others?

-- By ChengyuTan - 12 Mar 2021

The Fourth Amendment of the United States Constitution protects the right of the people to be secure in their persons, houses, papers, and effects from unreasonable searches and seizures by the government. However, as time goes by, paper and mail are not the only methods for people to store information or communicate with each other. The digital signal replaces paper and mail, and becomes the main information storage and communication method. Facing the changing situation that the Founding Fathers did not consider, can this 1792 masterpiece continue to protect people from the possible government surveillance?

The Third-party Doctrine

In the first beginning, the application of the Fourth Amendment searches was limited to physical intrusion. Other forms of investigation like wiretap are not in the scope of the "search." The Supreme Court overruled the decision after the case of Katz v. United States, requesting the courts to ask whether a person has shown a subjective expectation of privacy in a Fourth Amendment case. But what is the "expectation of privacy?" According to the United States v. Miller, the Supreme Court affirmed that the bank records were not in the scope of the privacy rights of the Fourth Amendment. When people voluntarily provide their information to banks, telecom companies, internet service providers or all other third parties, under the third-party doctrine, they have no legitimate expectation of privacy.

In some view, the third-party doctrine can be seen as a voluntary disclosure doctrine. People's expectation of privacy would disappear when they voluntarily consent to reveal the evidence. Just as you allow police to search your house, there is no reason to require a warrant when you have consent to reveal something. Under this doctrine, it seems that every piece of information we share with ISPs or even social networking services will be considered as "no reasonable expectation of privacy," and the government can obtain our information from those service providers without warrants and can avoid the requirement of probable cause under the Fourth Amendment. Looks scary, right?

In Carpenter v. United States, the Supreme Court affirms that in order to obtain the location information collected by cell sites, the government needs to be authorized by a search warrant. Only obtaining an order for disclosure, which has fewer requirements of obtaining than a warrant, is not enough to request the service providers to turn over the clients' physical locations. As the Supreme Court states, the people's location information collected by cell sites likes an exhaustive chronicle of location information, which provides the government with perfect surveillance and allows it to retrace people’s whereabouts. The people's location information collected by cell sites is more intrusive than the precedents might have anticipated, the third-party doctrine cannot be applied to cell sites location tracking, which cannot be simply seen as business records like in Miller.

However, when you see the third-party doctrine can be seen as a voluntary disclosure doctrine, a logical inconsistency will appear. Imagine a bank robber just robbed a bank, and a witness saw the robber hang near the bank, walked inside the bank and leave the bank. The police can talk to the witness without getting a warrant. Then why using people's location information collected by cell sites need to get a warrant? The only difference between these two are one is collected by human and another is collected by machine.

Moreover, the application of Carpenter is narrowed by the Supreme Court. It says that Carpenter "does not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras; does not address other business records that might incidentally reveal location information." In other words, the police can still use tools other than location information collected by the cell sites to an exhaustive chronicle of location information of a person. The inconsistency shows again.

Can Carpenter protect us in the Internet world?

The answer is no. The inconsistency will not let the police cannot access your online information. The reason is simple, when we click "like" on the posts, tag ourselves on the wall, browse the posts and shop on the website, even they are "such a pervasive and insistent part of daily life," we are voluntarily waiving our right of privacy, voluntarily allowing the government to analyze our thought, model our personality and predict our behavior without a court warrant and requirement of probable cause.

As a result, the most important question is not whether the Supreme Court should expand the application of Carpenter, see information like your "like" record, tags, browser histories or shopping hobbies as information with expectation of privacy and use Fourth Amendment to protect them, the most important question is why we want to voluntarily share our information with service providers.

The reason why "thought" is thought is that it is stored in the deep of our mind. The government has no right to compel us to share our thought. Even though you write down your thought in your diary, the government still need a court warrant to access into it. But once the government can easily access the online information, the protections do not exist anymore and the information is turned into a de facto witness against ourselves. So, maybe the best way we can do may still avoid being a witness against ourselves by not sharing our information with service providers.

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.


Webs Webs

r3 - 05 May 2021 - 19:26:34 - ChengyuTan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM