No Such Thing as Behind Closed Doors: How Technology Has Outdated the Third-Party Doctrine

Most people would agree with the assertion that if you want to keep something private, then you just shouldn’t tell anyone! And that is just the rule that the Supreme Court developed in Katz v. United States when it contemplated matters that are not considered “private,” in regards to the Fourth Amendment. The Court stated that “what a person knowingly exposes to the public . . . . is not a subject of Fourth Amendment protection.” A little over a decade later, the Court expanded this notion in Smith v. Maryland to create the third-party doctrine, which states that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” The idea behind the doctrine is that citizens should take steps to protect their privacy or to preserve their secrets; and if a citizen puts their personal information out to another party (usually a business with the third-party doctrine), then that information is obviously not private—and more importantly, it is not protected under the Fourth Amendment from government intrusion.

While the rule that individuals have no legitimate expectation of privacy in information voluntarily disclosed to other parties may have been more reasonable at the time of Katz (almost 50 years ago), applying the third-party doctrine in today’s high-tech society leads to government access of a wealth of personal information that citizens may not be so easily prepared to turn over, or to regard as “public” information. The major issue with the third-party doctrine is that with the prevalent use of technologies in the United States, such as smartphones and the Internet, people commonly convey personal information about themselves through intermediaries. In effect, the third-party doctrine has made government snooping through use of technology not only easier, but also more convenient.

The third-party doctrine began to show its effect in Smith v. Maryland, where the Supreme Court held that when police used a pen register device to record numbers the defendant dialed from his telephone, there was no unreasonable intrusion on the defendant’s privacy because the defendant had voluntarily disclosed those phone numbers to his telephone company. Thirty years later in United States v. Forrester, the Ninth Circuit expanded this notion, holding that computer users don’t have a legitimate expectation of privacy in the incoming and outgoing email addresses in their email accounts or the web addresses they visit, as this information is voluntarily conveyed to their Internet service providers.  

Yet, what exactly do the courts mean by “voluntary disclosure?” The concept is applied so liberally in third-party doctrine cases, that the courts’ rationales seem to defy human logic. For instance, when a person dials a telephone number on his cell phone, the person is not likely to stop to think that the number is being disclosed to his/her phone provider. Likewise, when the average computer user visits various websites on the Internet, the user does not appreciate that those web addresses are being conveyed to his/her Internet service provider and that the websites are now open to government access. Yet, even after the court opinions in Smith and Forrester, cell and web users are not likely to behave any differently because avoiding intermediary communications in today’s society is no only impractical; but virtually impossible.

Due to the digital age, information is now conveyed through intermediaries with such overwhelming frequency that citizens are hardly able to get away from intermediary communications. In Justice Sotomayor’s concurrence in United States v. Jones, she acknowledged this prevalence and revealed her own discomfort with the third-party doctrine, stating “people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks… 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.”  The two biggest issues with the third-party doctrine are that the rule is impractical and not intuitive. The doctrine appears to hold citizens responsible for disclosing information that they may or may not even realize they are disclosing. And furthermore, even if citizens stopped to realize just how much personal information they were conveying through intermediaries, it is not likely that citizens would even be able to avoid doing so.

The reality is that citizens are becoming increasingly dependent on intermediaries to transmit information. The more citizens use their smartphones and the Internet to conduct tasks, the more their right to privacy diminishes. The ultimate effect is that the government is allowed more and more access to a person’s private information. But is this fair? Is it reasonable to decide that just because a person visits a website online to purchase books or medication that the web addresses corresponding to those purchases should be made accessible to the government? Or that just because an iPhone user stores his/her photos on the cloud for safekeeping, that the government should then be able to request access to those photos?

Statistics show that 90% of American adults have a cell phone and 55% of Americans use the Internet everyday. Furthermore, according to a recent report, Americans use their cell phones to access the Internet regularly for communication, whether they are making calls, sending text messages, using social media, or responding to emails. Though it is not likely that the framers of the Constitution foresaw these technological advances, the astounding new digital age has come with a large price—the possibility of increased government intrusion.

Consequently, just as technology has changed dramatically, the third-party doctrine now requires dramatic reformation to protect the right to privacy. The third-party doctrine, if not abandoned completely, should be strictly limited to allow government access only to those types of information, which current citizens have no reasonable expectation of keeping private.

However, until the third party-doctrine undergoes reformation, defense attorneys will face challenges with keeping their clients’ private information out of government control, and out of use against their defendants as evidence in trial. Perhaps the best advice for defense attorneys to give to their clients is to tell them to avoid conveying personal information through technology. Defense attorneys could warn their clients not to make personal inquiries using search engines; to click “not allow” on their cell phones when being asked whether applications can access their locations; to have their private conversations in person, instead of making calls from their cell phones. The fact that such suggestions in today’s society are hardly realistic reflects the urgency with which the third-party doctrine requires its reform.   

Makia Weaver

Staffer, Criminal Law Practitioner

Photo by LuisVilla via Wikimedia Commons