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«Congressional Research Service 7-5700 R43586 The Fourth Amendment Third-Party Doctrine Summary In the 1970s, the Supreme Court handed ...»

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The Fourth Amendment Third-Party Doctrine

Richard M. Thompson II

Legislative Attorney

June 5, 2014

Congressional Research Service




The Fourth Amendment Third-Party Doctrine


In the 1970s, the Supreme Court handed down Smith v. Maryland and United States v. Miller, two

of the most important Fourth Amendment decisions of the 20th century. In these cases, the Court

held that people are not entitled to an expectation of privacy in information they voluntarily provide to third parties. This legal proposition, known as the third-party doctrine, permits the government access to, as a matter of Fourth Amendment law, a vast amount of information about individuals, such as the websites they visit; who they have emailed; the phone numbers they dial;

and their utility, banking, and education records, just to name a few. Questions have been raised whether this doctrine is still viable in light of the major technological and social changes over the past several decades.

Before there were emails, instant messaging, and other forms of electronic communication, it was much easier for the courts to determine if a government investigation constituted a Fourth Amendment “search.” If the police intruded on your person, house, papers, or effects—tangible property interests listed in the text of the Fourth Amendment—that act was considered a search, which had to be “reasonable” under the circumstances. However, with the advent of intangible forms of communication, like the telephone or the Internet, it became much more difficult for judges to determine when certain surveillance practices intruded upon Fourth Amendment rights.

With Katz v. United States, the Court supposedly remedied this by declaring that the Fourth Amendment protects not only a person’s tangible things, but additionally, his right to privacy.

Katz, however, left unprotected anything a person knowingly exposes to the public. This idea would form the basis of Smith and Miller. In those cases, the Court held that a customer has no reasonable expectation of privacy in the phone numbers he dials (Smith) and in checks and deposit slips he gives to his bank (Miller), as he has exposed them to another and assumed the risk they could be handed over to the government.

While the third-party doctrine has been criticized by Members of Congress, various commentators, and others as overly constrictive of Americans’ privacy rights, it appears to fit relatively well with other Fourth Amendment case law. That being said, advancements in data collection, automation, and use have some questioning the continued application of this doctrine in a digital society. Several events have precipitated renewed debates over its continued existence.

First was the Supreme Court’s decision in the GPS tracking case, United States v. Jones, where two concurring opinions comprising five Justices of the Court called into question various existing Fourth Amendment theories, including the third-party doctrine, at least with respect to long-term government monitoring and advanced surveillance technology. Second was the Edward Snowden leaks relating to the National Security Agency’s telephone metadata program, which has been primarily justified by Smith and the third-party doctrine. Various Members of Congress have joined the debate, with some introducing legislation that would require a warrant for access to records held by third-parties, and others introducing more targeted measures that would limit access to information such as geolocation data from third-party companies.

With these legal, social, and technological trends in mind, this report explores the third partydoctrine, including its historical background, its legal and practical underpinnings, and its present and potential future applications. It explores the major third-party doctrine cases and fits them within the larger Fourth Amendment framework. It surveys the various doctrinal and practical arguments for and against its continued application. Lastly, this report describes congressional efforts to supplement legal protection for access to third-party records, as well as suggesting possible future directions in the law.

Congressional Research Service The Fourth Amendment Third-Party Doctrine Contents Introduction

Fourth Amendment Background

Early Definitions of a Fourth Amendment “Search”

Reasonable Expectation of Privacy and the Secrecy Model of Privacy

Third-Party Doctrine Jurisprudence

Undercover Informant Cases

Miller v. United States—Subpoena for Bank Records

Smith v. Maryland—Subpoena for Telephone Call Records

Other Applications of the Third-Party Doctrine

Support for the Third-Party Doctrine

Criticism of the Third-Party Doctrine

Implications of United States v. Jones on the Third-Party Doctrine

Congressional Response to the Third-Party Doctrine


Contacts Author Contact Information

–  –  –

Introduction In 1967, the Supreme Court pronounced in Katz v. United States that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”1 This rule “that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties” is known as the “third-party doctrine.”2 While its reach in the pre-digital age was relatively limited, the third-party doctrine has provided the government a powerful investigative tool in a society where people share ever-increasing amounts of information with others. Many have debated whether these technological and social changes require the courts to reconsider this doctrine, or, alternatively, whether Congress should step in and create some form of statutory protection for this information.3 Over the years, the Court has applied the third-party doctrine to two main sets of cases. In one, the Court has held that people do not have a reasonable expectation that a person with whom they are communicating will not later reveal that conversation to the police.4 In the second, the Court extended this doctrine to hold that people are not entitled to Fourth Amendment safeguards for records given to a third-party or data generated as part of a person’s business transactions with a third-party. In two of the most prominent third-party cases, Smith v. Maryland and United States v.

Miller, the Court held that government access to telephone calling records and bank records, respectively, were not Fourth Amendment searches for which warrants were required.5 To be clear, the third-party doctrine does not cover all conceivable information that is transferred through a third party. For instance, the content of a voice or email communication does not fall within its scope.6 The courts have reasoned that the service provider is merely the conduit or intermediary of those communications and not the recipient; thus, the user does not lose privacy protection in those communications. On the other hand, both non-content and content information that is shared directly with a service provider is covered by the third-party doctrine (e.g., the deposit slips or checks shared with a bank and data kept by the bank relating to transactions with it). Additionally, non-content information derived from private interactions with others is subject to the third-party doctrine. This covers data such as telephone numbers dialed, email addresses of those emailed, or websites visited.

Katz v. United States, 389 U.S. 347, 351 (1967).

Smith v. Maryland, 442 U.S. 735, 743-44 (1979).

See, e.g., Orin Kerr and Greg Nojeim, The Data Question: Should the Third-Party Records Doctrine Be Revisited?, ABA JOURNAL (Aug. 1, 2012), available at http://www.abajournal.com/magazine/article/ the_data_question_should_the_third-party_records_doctrine_be_revisited/; Orin Kerr, The Case for the Third Party Doctrine, 107 MICH. L. REV. 561, 575 (2009); Richard A. Epstein, Privacy and the Third Hand: Lessons from the Common Law of Reasonable Expectations, 24 BERKELEY TECH. L. J. 1199 (2009); Erin Murphy, The Case Against the Case for Third-Party Doctrine: A Response to Epstein and Kerr, 24 BERKELEY TECH. L. J. 1239 (2009); Stewart Baker, Smith v. Maryland as a Good First-Order Estimate of Reasonable Privacy Expectations, VOLOKH CONSPIRACY (May 4, 2014), available at http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/05/04/smith-v-maryland-as-agood-first-order-estimate-of-reasonable-privacy-expectations/.

See infra notes 49-66, and accompanying cases.

United States v. Miller, 425 U.S. 435 (1976); Smith, 442 U.S. 735.

Katz, 389 U.S. at 352 (voice); United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010) (email).

–  –  –

The third-party doctrine has been heavily criticized for unnecessarily constricting Americans’ privacy rights.7 But whatever one thinks of the rule that citizens are not entitled to Fourth Amendment protection when they share information with one another, the third-party doctrine is largely entrenched in other areas of Fourth Amendment case law. For example, it is not a Fourth Amendment search for the police to dig through one’s trash left on the curb,8 to track a person’s movements on public streets,9 and even to surveil a person in a fenced-in backyard with an aircraft.10 In each of these instances, the Court reasoned that because the person exposed his activities to the public gaze he was no longer entitled to an expectation of privacy.

In addition to the legal attacks on the third-party doctrine, some have questioned its practical implications in a society which shares almost every facet of its life with various entities.11 Both Smith and Miller, decided in the mid- to late-1970s, came before the mass digital revolution experienced over the last several decades. Since these decisions, there has been a wave of advancement in data generation, collection, automation, and processing.12 Whether these new technologies and shifts in social interaction require courts or lawmakers to revise this review is currently under debate.

Two major events in the past few years typify this ongoing debate. The first is the conversation prompted by several concurrences in the 2012 GPS tracking case United States v. Jones.13 In two concurring opinions in that case, five Justices opined that warrantless, pervasive government location monitoring can violate the Fourth Amendment.14 Commentators have speculated that these five votes could have significant consequences for other similar ubiquitous surveillance techniques.15 And at least one member of the Court, Justice Sotomayor, believes that the thirdSee, e.g., United States v. Miller, 425 U.S. 435, 447 (Brennan, J., dissenting); Stephen E. Henderson, The Timely Demise of the Fourth Amendment Third Party Doctrine, 96 IOWA L. REV. BULL. 396 (2011); CHRISTOPHER SLOBOGIN,


California v. Greenwood, 486 U.S. 35, 43-44 (1988).

United States v. Knotts, 460 U.S. 276, 285 (1983).

Florida v. Riley, 488 U.S. 445, 451-52 (1989).

See DANIEL J. SOLOVE, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE 202 (2004) (“The government’s harvesting of information from the extensive dossiers being assembled with modern computer technology poses one of the most significant threats to privacy of our time.”).

Omer Tene and Jules Polonetsky, Big Data for All: Privacy and User Controls in the Age of Analytics, 11 NW. J.

TECH. & INTELL. PROP. 239, *1(2013) (“Big data is upon us.” https://a.next.westlaw.com/Document/ I535f4a8bb78611e28578f7ccc38dcbee/View/FullText.html?navigationPath= Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad6040300000146014bbf3f6cbb1298%3FNav%3DANALY TICAL%26fragmentIdentifier%3DI535f4a8bb78611e28578f7ccc38dcbee%26startIndex%3D1%26contextData%3D% 2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource= 4f65f444bd87ab8451abbca5a750d542&list=ANALYTICAL&rank=10&grading=na&sessionScopeId= bbd4e55d34300e25e857bc0ccd7bbb05&originationContext=Search%20Result&transitionType=SearchItem& contextData=%28sc.Search%29 - co_footnote_F3388167494 Over the past few years, the volume of data collected and stored by business and government organizations has exploded. The trend is driven by reduced costs of storing information and moving it around in conjunction with increased capacity to instantly analyze heaps of unstructured data using modern experimental methods, observational and longitudinal studies, and large scale simulations. Data are generated from online transactions, email, video, images, clickstream, logs, search queries, health records, and social networking interactions; gleaned from increasingly pervasive sensors deployed in infrastructure such as communications networks, electric grids, global positioning satellites, roads and bridges, as well as in homes, clothing, and mobile phones.”).

United States v. Jones, 132 S. Ct. 945 (2012).

Id. at 954 (Sotomayor, J., concurring); Id. at 957 (Alito, J., concurring).

See, e.g., Priscilla J. Smith, Much Ado About Mosaics: How Original Principles Apply to Evolving Technology in (continued...)

–  –  –

party doctrine should be seriously rethought as a whole. The second is the litigation surrounding the National Security Agency’s telephone metadata program. Several federal courts, including the Foreign Intelligence Surveillance Court, have applied Smith and the third-party doctrine to uphold this comprehensive data collection program.16 One district court judge, however, found Smith outdated and the NSA program too invasive for Smith to still control this legal question.17 With these shifts in technology and legal thinking in mind, this report explores the history and legal foundations of the third-party doctrine. It will first provide background to the Fourth Amendment and describe in what instances government investigations trigger its protections. It will then analyze the Court’s third-party doctrine cases and provide doctrinal and practical arguments for and against its application. Next, this report will examine how Congress has responded to the third-party doctrine and whether United States v. Jones and subsequent cases might alter its future application. Lastly, this report will consider any potential future developments in this fast-moving area of law.

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