Other People's Papers

60 Pages Posted: 3 Mar 2015 Last revised: 15 Dec 2015

See all articles by Jane R. Bambauer

Jane R. Bambauer

University of Arizona - James E. Rogers College of Law

Date Written: December 12, 2015

Abstract

The third party doctrine permits the government to collect consumer records without implicating the Fourth Amendment. The doctrine strains the reasoning of all possible conceptions of the Fourth Amendment and is destined for reform. So far, scholars and jurists have advanced proposals using a cramped analytical model that attempts to balance privacy and security. They fail to account for the filterability of data. Filtering can simultaneously expand law enforcement access to relevant information while reducing access to irrelevant information. Thus, existing proposals will distort criminal justice by denying police a resource that can cabin discretion, increase distributional fairness, and exculpate the wrongly accused.

This Article offers the first comprehensive analysis of third party data in police investigations by considering interests beyond privacy and security. First, it shows how existing proposals to require suspicion or a warrant will inadvertently conflict with other constitutional values, including equal protection, the First Amendment, and the due process rights of the innocent. Then it offers surgical reforms that address the most problematic applications of the doctrine: suspect-driven data collection, and bulk data collection. Well-designed reforms to the third party doctrine will shut down the data collection practices that most seriously offend civil liberties without impeding valuable, liberty-enhancing innovations in policing.

Keywords: Fourth Amendment, privacy, third party doctrine, equal protection, Big Data

Suggested Citation

Yakowitz Bambauer, Jane R., Other People's Papers (December 12, 2015). 94 Texas Law Review 205 (2015); Arizona Legal Studies Discussion Paper No. 15-13. Available at SSRN: https://ssrn.com/abstract=2572448

Jane R. Yakowitz Bambauer (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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