The Third-Party Doctrine has been in the news a lot lately. It has surfaced in court opinions, scholarly articles and tech publications. Why all the attention? Because the Third-Party Doctrine is an antiquated method of ridding you of your constitutional right to privacy.
Everyone knows that you are entitled to privacy. That right is embodied in the 4th Amendment, which prohibits unreasonable searches and seizures by the government. Your house, your car, your personal property are all protected by this right. Thus, the police cannot simply come walking into your home looking for illegal activity. They are required to obtain a warrant based on specific information that gives probable cause to search, and that standard is intended to protect your privacy. This right is rooted in the very foundation of our country.
The Third-Party Doctrine is premised on the voluntary disclosure of information to another person or entity. Your decision to give up your right to privacy to share that information removes your protections under the 4th Amendment. As a result, the government may request the information you disclosed without a warrant. Under those circumstances the Third-Party Doctrine seems reasonable because you have disclosed information to someone else and given up your opportunity to maintain your privacy. But, what if you didn’t have a choice about sharing your information?
This is where the Third-Party Doctrine becomes very troubling in modern society. Think about it. By sending a subpoena to your cellular telephone company the government can see your GPS movement and cell phone tower information. At first glance maybe this doesn’t matter because the government could simply follow you around and see where you are at any given time. But, consider that with that information the government could simply request the information, review your most visited locations and determine where you work, where you go to school, what pharmacy you use, the doctors you visit and everything else about your day to day activity. Even then it may not be so crazy, but what happens when the government starts accessing other information.
In not so many years from now many of our homes will be run on the “internet of things.” Your refrigerator, HVAC Unit, washer and dryer, lighting, TV and almost every other appliance in your home will be run by machines connected to the internet. Your car will drive itself and will be connected to the internet, if it isn’t already. All of your information will be stored in the cloud including your medical information, bank information and multimedia. Every piece of information about you will be technically be provided to a third party to run your everyday life. But, how many people have voluntarily told Google, Apple, Mercedes or other companies that they specifically consent to them tracking and storing their every move. Probably not many. But, you have done just that without really giving it much thought.
Those are long term issues that have not been challenged, but there are a number of concrete examples that have come to light recently. In a highly publicized case, United States v. Graham, the 4th Circuit overturned itself in an En Banc decision finding that the government does not need a warrant to request information from a cellular telephone provider detailing your cell site data information. As I previously discussed here, cell site information can be used to determine your location at any given time over any period you have owned and used your cellphone. That means that the government can track your movements without seeking a warrant stating the reasons why they need the information based on the theory that you have voluntarily provided the cellphone company your cell site data. However, no citizen has been given the choice of transmitting this data. In fact, many people probably never even know it happens. Without giving you an actual choice, you have opted into mass surveillance by the government. By simply owning a cellphone you have consented to the government tracking your location. even if you wanted to turn it off, you can’t.
In United States v. De L’Isle, the 8th Circuit determined that a police officer could swipe your credit card without violating the Fourth Amendment because you have or would disclose that information to a third party, namely the issuing bank. The Court stated:
He also could not have had a subjective expectation of privacy in any of the other cards because the purpose of a credit, debit, or gift card is to enable the holder of the card to make purchases, and to accomplish this, the holder must transfer information from the card to the seller, which negates an expressed privacy interest.
Hope is not lost though. Supreme Court Justice Sotomayor has addressed the continued efficacy of the Third-Party Doctrine in her concurrence in United States v. Jones. She made it clear that the continued application of the Thrd-Party Doctrine in modern society has and will cause significant problems. She said:
More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976) . This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medi-cations they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the “tradeoff ” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith, 442 U. S., at 749 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”); see also Katz, 389 U. S., at 351–352 (“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected”).This is an area ripe for litigation. In every case attorneys should be challenging cell site information and other data transmitted to companies over the internet that was obtained without a warrant.
This is an area ripe for litigation. Attorneys should be challenging cell site information and other data obtained from companies without a warrant.