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, they have no legitimate expectation of privacy. The third-party doctrine came to the Earth. 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?

The little Change

Luckily, the situation has become better in recent years. 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 that collected by cell sites likes an exhaustive chronicle of location information, which provide the government near perfect surveillance and allow it to retrace people’s whereabouts. The people's location information that 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 seem as a business records like in Miller.

The change is not enough

Is Carpenter v. United States enough to protect you from possible government surveillance? The answer is NO. In Carpenter v. United, the Supreme Court clearly says that the decision is narrow and does not express a view on matters not before the Court. It "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, except for the people's location information collected by the cell sites, nothing has changed and the third-party doctrine is still applied to all that information.

Following this thinking, 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 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. The thing may go worse. 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.

The future

The decision in Carpenter v. United States may not be perfect; however, it still tears a small hold in the third-party doctrine. If one of the purposes of the Fourth Amendment is to protect the right of privacy, and if the location information, even it has been voluntarily provided to a third party, can be seen as information with expectation of privacy, why other information, like your "like" record, tags, browser histories or shopping hobbies, cannot be seen as information with expectation of privacy and protected by the Fourth Amendment? With those pieces of information, our thought can be analyzed, personality can be modeled and behavior can be predicted. How can we say that those information is not sensitive enough to be protected by the Fourth Amendment? But before the Supreme Court opens the whole gate for those kinds of information, the best way we can do may still avoid being a witness against ourselves by not sharing our information with service providers.

Unfortunately, maybe lots of people know their right under the Fourth Amendment, but only a small part of them understand the application of the third-party doctrine. It may be the time that we should increase awareness of those understanding to people, both children and adults; otherwise, the Carpenter may always is Carpenter.

This is a very good first draft. I think there are two questions deserving of further consideration, in the interest of making the next draft stronger:

1. Naming something the "third-party doctrine" that could equally be called the "voluntary disclosure doctrine" has the effect of either framing or distorting the question, dependent on point of view. No warrant is necessary for a physical search if the police are invited into the home or office. If evidence has been voluntarily disclosed to someone, or left on the sidewalk, why should a warrant be required? This has less to do with third or fourth parties than it has to do with the voluntary decisions of the defendant.

Seen from this perspective, the so-called "third party doctrine" is actually a consent rule. We're not strict about consent to physical search: a roommate or other person with any interest in the property can give consent to search, and if the street door is left open the policemen may enter without more ceremony.

2. For this reason, Carpenter is difficult if not impossible to understand. The defendant has chosen to rob banks while wearing a radio transponder with a unique identifying number that it presents to the world. Someone who has an antenna tuned to the relevant frequency can hear the transponder's signals. That person is a witness, who has received in radio frequencies the equivalent of what another witness might see in the visible light spectrum. Why should it suddenly require a search warrant to talk to the witness?

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