Reasonability and Expectations of Internet Privacy

-- By EdwardBontkowski - 03 May 2010

The Fourth Amendment of the United States Constitution provides protection from “unreasonable” searches and seizures. One of the specific interpretations of this amendment is the third-party doctrine, which removes Fourth Amendment protection from any information a person reveals to a third party. This rule may be applied to a part of the bill of rights, but it has traditionally been considered a part of criminal procedure since most of its applications end up in criminal cases. Proponents of the doctrine may try classifying it as a consent doctrine, rather than a “reasonable expectation of privacy” litmus test. The advantage of this would be to focus the issue primarily on the advantages of using the rule to pursue criminal behavior, rather than the importance of protecting non-criminal civilians.

Why is the Third Party Doctrine in Effect at All?

Professor Orin Kerr of George Washington University argues that there are two primary goals advanced by the third-party doctrine. The first is that the absence of the doctrine would create an unacceptably convenient situation for criminals. According to Kerr, normal criminal behavior must at some point leave the space protected by the Fourth Amendment and venture into a space accessible to law enforcement officers. When this happens, the beginnings of an investigation that lead to probable cause can be undertaken, and eventually a warrant can be procured on those grounds if necessary. When criminals have the option of using third-party intermediaries on the other hand, it is conceivable to commit a crime in which there is no public access to information of any kind. The Fourth Amendment is used to balance the scales of freedom and security, and without the third-party rule, the balance would be too far from security to adequately defend against criminals.

The second important consequence of the third-party doctrine is creating what Kerr calls “Ex Ante Clarity” in the Fourth Amendment. Basically, the law must be interpreted by law enforcement officials, and without a rule like the third-party doctrine, this would be more difficult for them. The rule makes it easy to determine what information is unprotected by Fourth Amendment rights because that status is determined entirely by the location of the information, rather than by any particular feature of the information itself, or the medium in which it is contained.

The principle most often used to justify the doctrine itself is the idea that individuals who communicate to third parties “assume the risk” of making someone else aware of that communication. Any given person could be working with the government or some other party, and by making any kind of communication, an individual is opening themselves to the possibility that it will be communicated beyond where they had intended.

Is This Reasoning Good Enough?

Despite these several advantages, the third-party doctrine is one of the most argued against and least favored constitutional interpretations around. While it is certainly true that the use of a third-party can make criminal behavior easier, the most obvious and frequent counter to this argument in support of the doctrine is that this simply isn’t a good enough reason alone to deny people what would otherwise be their right to privacy in their interactions. A similar argument based on intuition is typically used against the idea that law enforcement requires as black letter a law as the third-party doctrine. While it is true that having a simple rule makes decisions easier about whether or when various information can be seized or examined, making the job of police easier is not a compelling interest in the face of considering the privacy rights of the population at large.

It is important to consider the way in which the framing of the third-party doctrine as a consent doctrine helps to shift the issue. The court in Katz v. United States recognized that there was a distinct difference between observing the numbers dialed by a phone call and listening to the contents of the call. 389 U.S. 347 (1967) The activity performed by the government in that case would have been a criminal action if performed by a private person. This is important because it illustrates that new technology must be understood in different ways. While the third party doctrine may have been reasonable at a time when every act of communicating information to a third party mean that a person was specifically making another person aware of that information; the situation with modern technology is not necessarily equivalent. The court in Katz obviously recognized that although there was a person on the other end of the phone who could theoretically have been communicating with police, the simple existence of that person was not enough. The third party themselves were not the ones who were in communication with police. It was an additional action which intruded the police into the business of Katz, and that intrusion was what created the unconstitutionality.

Conclusion

In my opinion, the reliance on the idea of an individual assuming the risk attempts too narrowly to pin down a specific interpretation of what should be considered reasonable. The pervasiveness of the internet into all aspects of society and the nature of the way resources are divided make it increasingly convenient and expected to store personal information of some kind or another on a third party network. Society defines what is “reasonable” for a person to assume, and the increasing frequency with which Facebook, Gmail, and other website’s security protocols are debated in a public forum make it at least plausible that there are many people who believe “internet privacy” should not be an oxymoron.

One of the reasons I make an effort in my teaching to provide clear, explicit historical context connecting the formative tradition of our constitutional law with the current issues is to avoid the confusion that arises from the attempt (which is never not being tried by somebody, despite its disutility) to invent "constitutional law" as a subject divorced from the contingencies of historical development. The contour of the Fourth Amendment is poorly captured in a short string of a few decades' cases in which "reasonable expectation of privacy" is used as a synonym for "reasonable." The facts that the Amendment's language protects places, and things in those places, that it concerns a right of security, not a right of privacy, and that its language grows out of controversies involving political offenses are all part of the historical context of the limitation on state power. Reasoning as though the Fourth Amendment were equal to a provision calling for reasonable privacy expectations to be protected against searches by government agents unless a warrant has issued upon showing of probable cause to a neutral magistrate will not correctly predict the outcomes of the cases over any lengthy period of time, and will certainly not explain how the people who expressed this principle in eighteenth-century British North American legal documents understood it.

The sharp distinction between criminal and other coercive governmental process is also ahistorical. The common law is not quite so sharp as that, for one thing. To forget, moreover, how important political offenses are in English legal history with respect to the rights of criminal defendants generally, is both to misunderstand the past and to be a little complacent about our present. We certainly do like to think of our criminal law system as free of political offense prosecutions. But this is not quite as simple as it tends to seem to us. In the precise context of the Fourth Amendment's development out of English historical circumstances, as I labored to demonstrate in class, the political offenses of the seventeenth century, and the use of mixed civil and criminal modes of coercion against political dissidents, both played a significant role.

One could have a sort of purely prescriptive constitutional reasoning which was not at all about how words came to be used or what they meant to the people who used them, but was only responsive to current concerns. I have more sympathy for that approach than most constitutional law professors, because they mostly (quite correctly) think this would result in a constitutional law indistinguishable from politics, which they—being constitutional law professors—think is not the case with the constitutional law they teach. But even I find it difficult to take very seriously an argument that asks me explicitly to ignore the history of our constitutional arrangements in order to make constitutional policy based on purely logical relationships among secondary entities, like the phraseology of judicial opinions or the strength of our contemporary confidence in the political independence and self-restraint of our prosecutors, police, and internal security organs. A Fourth Amendment that protects privacy interests in my information held in third hands would be a useful provision in a constitution, but it isn't what is in this constitution, unless this constitution is whatever we happen to say it is today.

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