Looking Back to Look Forward: Reexamining the Application of the Third-Party Doctrine to Conveyed Papers

By Ernst, Colleen Maher | Harvard Journal of Law & Public Policy, Winter 2014 | Go to article overview
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Looking Back to Look Forward: Reexamining the Application of the Third-Party Doctrine to Conveyed Papers


Ernst, Colleen Maher, Harvard Journal of Law & Public Policy


The third-party doctrine maintains that individuals lose Fourth Amendment protection for information knowingly revealed to third parties. Applying this rule, courts have held that individuals lack Fourth Amendment protection for, among other things, numbers dialed on a phone (1) and trash left in a sealed bag on their curb. (2) Many scholars criticize this doctrine, describing it as "contrary to the purposes underlying the Fourth Amendment" (3) and "one of the most serious threats to privacy in the digital age." (4) In January of 2012, Justice Sotomayor wrote, "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age...." (5)

The Supreme Court's recent opinion in United States v. Jones (6) provides fresh grounds for reconsideration of the third-party doctrine as applied to papers and their digital equivalents. In Jones, the Court clarified the scope of the inquiry demanded by the Fourth Amendment. The majority repudiated the notion that Fourth Amendment protections "rise or fall" under the reasonable expectation of privacy formulation first articulated in the 1967 case of Katz v. United States. (7) Instead, the Court held that the Katz line of reasonable expectation cases supplemented, rather than supplanted, the exclusively property-based approach of early Fourth Amendment cases. (8) The Jones majority thus found that a search involving trespass would be unlawful, even if an individual had no reasonable expectation of privacy in the information. In reaching this holding, the Jones Court reaffirmed its duty to "'assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." (9) The Court emphasized that a Fourth Amendment analysis is incomplete without examination of early search and seizure precedent. (10)

Jones's emphasis on preserving the historic scope of Fourth Amendment protection stands in tension with the Court's practice of applying the third-party doctrine to papers and their digital equivalents. This Note explores the roots of this practice and highlights how this application represents a break from early Fourth Amendment precedent. This Note then presents a line of cases that suggests individuals do not necessarily surrender Fourth Amendment protection when they convey papers to third parties. This Note concludes with the argument that, pursuant to Jones, the Court must honor early Fourth Amendment precedents and provide protection for conveyed papers and their digital equivalents.

I. CONFLICTING PRINCIPLES: THE PROPERTY-BASED AND EXPECTATIONS-BASED LINES OF FOURTH AMENDMENT JURISPRUDENCE

The Fourth Amendment of the United States Constitution reads, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." (11) The Drafters included this amendment in the Bill of Rights in response to British general warrants and the colonial writs of assistance that empowered revenue officers to search at will for smuggled goods. (12) In February 1761, James Otis, the Attorney General in the colony of Massachusetts, (13) described writs of assistance as "the worst instrument[s] of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book" because the writs placed "the liberty of every man in the hands of every petty officer." (14) The Fourth Amendment of the United States Constitution mirrors the language of the Massachusetts Declaration of Rights of 1765 and the same state's Constitution of 1780. (15)

Following the enactment of the Bill of Rights, courts developed two divergent lines of Fourth Amendment jurisprudence. (16) The first--reflecting a property-based conception of Fourth Amendment rights--dominated the Court's understanding until the latter half of the twentieth century.

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