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The Third-Party Doctrine and the Third Person

47 Pages Posted: 23 May 2013 Last revised: 16 Nov 2014

Simon Stern

University of Toronto - Faculty of Law

Date Written: May 22, 2013

Abstract

According to the Third-Party Doctrine, a person has no reasonable expectation of privacy in information that has been shared with others – including a bank, a phone company, or a credit card company. The doctrine got its start through an appeal to a locatable observer who corresponds, in literary terms, to a narrator with a limited perspective. This is the kind of perspective that courts have traditionally emphasized when explaining how to assess probable cause. The Third-Party Doctrine turns the limited perspective into an omniscient one. The doctrine takes apparently private conduct and classifies it as public, effectively treating the perspective of the “arresting officer” as if it could encompass large quantities of information, widely distributed in space and time.

The discussion here examines a recent defense of the Third-Party Doctrine that similarly collapses the limited and omniscient viewpoints. Then, after exploring the narrative analogy by reference to literary analyses of the omniscient narrator in Victorian fiction, the discussion ends by considering the analogy in relation to contemporary modes of omniscient narration.

Keywords: Third-Party Doctrine, Fourth Amendment, search and seizure, legal theory, common law, law and narrative, narratology, omniscient perspective

JEL Classification: K14

Suggested Citation

Stern, Simon, The Third-Party Doctrine and the Third Person (May 22, 2013). New Criminal Law Review, Vol. 16, 2013, 364-412. Available at SSRN: https://ssrn.com/abstract=2268288

Simon Stern (Contact Author)

University of Toronto - Faculty of Law ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
Canada

HOME PAGE: http://www.law.utoronto.ca/faculty-staff/full-time-faculty/simon-stern

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