The Timely Demise of the Fourth Amendment Third Party Doctrine

13 Pages Posted: 11 Sep 2010 Last revised: 10 Jun 2013

See all articles by Stephen E. Henderson

Stephen E. Henderson

University of Oklahoma - College of Law

Date Written: September 9, 2010


In what may be a slightly premature obituary, this Bulletin response to a forthcoming paper by Matthew Tokson argues that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend or invoke it, and lower courts seem to be responding to that shift. In the relatively short space allotted, I place Tokson''s thoughtful argument in this greater context, and briefly reply to related arguments of Professor Kerr and Judge Posner.

Keywords: Fourth Amendment, Third Party Doctrine, Privacy

JEL Classification: K14

Suggested Citation

Henderson, Stephen E., The Timely Demise of the Fourth Amendment Third Party Doctrine (September 9, 2010). Iowa Law Review Bulletin, Vol. 96, p. 39, 2011, Available at SSRN:

Stephen E. Henderson (Contact Author)

University of Oklahoma - College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States
405.325.7127 (Phone)


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