Academic journal article The William and Mary Bill of Rights Journal

The Fourth Amendment Disclosure Doctrines

Academic journal article The William and Mary Bill of Rights Journal

The Fourth Amendment Disclosure Doctrines

Article excerpt

INTRODUCTION

The third party and public disclosure doctrines (together the "disclosure doctrines") are long-standing hurdles to Fourth Amendment protection.1 These doctrines have become increasingly relevant to assessing the government's use of recent technologies such as data mining, drone surveillance, and cell site location data.2 It is surprising then that both the Supreme Court and scholars, at times, have associated them together as expressing one principle.3 It turns out that each relies on unique foundational triggers and does not stand or fall with the other. This Article tackles this issue and provides a comprehensive topology for analyzing the respective contours of each doctrine.4

The third party doctrine involves an individual voluntarily disclosing information to a third party and the government thereafter acquiring it from the third party.5 The nature of the information-whether it is public or private-is not relevant.6 The individual loses all Fourth Amendment protection to this information because she assumes the risk the third party will hand it over to the government.7 The Supreme Court has applied this doctrine to discrete conversations revealed to informants,8 bank records relayed to bank employees,9 and phone numbers disclosed to phone companies.10

The public disclosure doctrine, on the other hand, focuses on an individual disclosing movements or items that are susceptible to visual observation.11 There is no third party involved nor is one necessary for an application of the doctrine.12 The key to vitiating Fourth Amendment protection is simply that the government is surveilling these movements or observing these items while they are public. The Supreme Court has applied this doctrine to government use of beeper tracking,13 GPS surveillance,14 and aerial reconnaissance.15

The Court as well as scholars have been guilty of grouping together these two doctrines when assessing Fourth Amendment protection, particularly as it relates to new technologies. For instance, in United States v. Jones16-the most recent Supreme Court case on surveillance and technology-Justice Sotomayor in her now famous concurrence argues that the third party doctrine may not be viable in today's technology-dominated world.17 This interesting non sequitur is puzzling as the case only dealt with visual surveillance and the public disclosure doctrine.18 Scholars too-in their assessment of mass surveillance and data collection-have lumped the two doctrines together, suggesting they stand or fall as one.19 On one level, this association is understandable as both doctrines involve waiving Fourth Amendment protection to certain actions and assuming the risk the government will acquire the information. But a more precise understanding of the respective elements of the doctrines is imperative if scholars and courts are to properly assess Fourth Amendment protection when it comes to new methods of government surveillance and data collection.

For example, there may be instances where the third party doctrine applies- such as mass collection of phone numbers or other private data-but there is no potential application of the public disclosure doctrine because the information is not public. Similarly, there may be instances where the public disclosure doctrine applies-such as surreptitious government long-term monitoring using GPS or drones-but there would be no application of the third party doctrine because there is no knowing disclosure to a third party.

There also may be situations where both doctrines could potentially apply. I use cell phone site location data as a case study.20 Courts seem to pick and choose a doctrine without a complete understanding of why one or the other applies (or does not apply).21 These inconsistent results are primarily due to the unique nature of this technology and the different ways one can conceptualize how the government collects it. The data can be viewed as non-public information disclosed to a cell phone provider (suggesting a potential application of the third party doctrine) or seen as public movements susceptible to visual surveillance (suggesting a potential application of the public disclosure doctrine). …

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