Academic journal article Notre Dame Law Review

A New Third-Party Doctrine: The Telephone Metadata Program and Carpenter V. United States

Academic journal article Notre Dame Law Review

A New Third-Party Doctrine: The Telephone Metadata Program and Carpenter V. United States

Article excerpt

INTRODUCTION

The third-party doctrine was long considered a well-established principle that was not going anywhere anytime soon. It traces back to early Fourth Amendment jurisprudence in 1967, when the Supreme Court issued its landmark decision in Katz v. United States. (1) There, the Court asserted that "[w] hat a person knowingly exposes to the public... is not a subject of Fourth Amendment protection." (2) The Court affirmed this assertion in United States v. Miller, holding that checks and other financial records voluntarily turned over to a bank were not subject of Fourth Amendment protection, (3) and again in Smith v. Maryland, holding that phone numbers dialed out were voluntarily conveyed to a phone company and therefore not entitled to Fourth Amendment protection. (4) What resulted was a bright-line rule that guided courts in deciding cases under the third-party doctrine: an individual has no reasonable expectation of privacy under the Fourth Amendment in information that is voluntarily conveyed to a third party. (5)

In 2018, the Supreme Court confronted and reconsidered the forty-year-old third-party doctrine in the newest Fourth Amendment landmark case, Carpenter v. United States. (6) The digital world--a world in which technology and mobile devices are extensions of our own bodies, tracking our every conversation, every move, every purchase, every internet search--was becoming one in which the bright-line rule of voluntary disclosure could no longer thrive. Would the Court allow these tiny 5.8-inch devices that captivate Americans' entire lives in sixty-four gigabits to reveal such personal information to the government without a warrant? Chief Justice Roberts, writing for the majority, recognized these concerns and made a substantial retreat from the traditional bright-line approach of the third-party doctrine. (7) What came from the Carpenter decision was a new balancing test that weighs the reduced or reasonable expectation of privacy against whether the information was truly voluntarily exposed to the third party. (8)

Roberts asserted that the Court's decision in Carpenter should have no bearing on national security law. (9) By making that simple assertion, however, he raised the red flag and called attention to the question of how the third-party doctrine applies to the collection of information relating to national security. Perhaps the most significant question is how the third-party doctrine applies to bulk metadata collection under the Foreign Intelligence Surveillance Act's telephone metadata program. Under the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, the government could collect and record any tangible thing, most significantly, bulk telephone metadata on millions of Americans without a warrant. (10) In an infamous 2013 leak to the press, the American public discovered that the government had collected and recorded bulk metadata on millions of wireless subscribers. (11) Congress attempted to remedy the situation by enacting new legislation. However, the impact of the new law remains unclear, with millions of datapoints still being collected and recorded, which has long been defended by the fact that individuals turn over revealing information to their wireless providers, thereby barring them from bringing any Fourth Amendment claim against the government. (12)

This Note will answer the question of whether bulk metadata collection is still defensible under the third-party doctrine. It ultimately concludes that Roberts incorrectly asserted that Carpenter will not impact the application of the third-party doctrine to collection techniques involving national security, and that the warrantless collection of bulk metadata under the Foreign Intelligence Surveillance Act is no longer defensible by the third-party doctrine. In Section LA, this Note discusses traditional Fourth Amendment jurisprudence in Katz v. United States and the establishment of the third-party doctrine as a bright-line rule in United States v. …

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