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For Whom the Data Tolls: A Reunified Theory of Fourth and Fifth Amendment Jurisprudence

64 Pages Posted: 13 Mar 2015 Last revised: 24 Dec 2015

Bryan H. Choi

Ohio State University (OSU) - Michael E. Moritz College of Law; Information Society Project, Yale Law School

Date Written: March 11, 2015

Abstract

Data privacy demands a reunified theory of the Fourth and Fifth Amendments. Data technologies allow personal information to be disembodied from physical bodies and “possessed” simultaneously by both first persons and third parties. As a result, the government has been able to use a divide-and-conquer strategy to obtain incriminating evidence alternately from the data intermediary or from the suspect himself.

Currently, Fourth Amendment doctrine and Fifth Amendment doctrine work at cross purposes. The privacy community has already sounded the alarm on the “third party doctrine,” which allows the government to sidestep the Fourth Amendment when demanding evidence from third parties. But few have noted the equally potent “required records doctrine,” which allows the government to circumvent the Fifth Amendment privilege against self-incrimination when demanding evidence directly from first persons. Taken together, the two exceptions swallow the rule, allowing the government to evade both Fourth and Fifth Amendment review at every turn.

This Article argues that juxtaposing the two exceptions together offers clues for how to resolve the reciprocal line-drawing problems. The first clue is that one excludes only “third parties” from constitutional protection, while the other excludes only “first parties.” The second is that the third-party doctrine grew out of cases upholding the moral autonomy of natural persons, whereas the required-records doctrine drew its authority from the need to regulate commercial activities of business entities. Reframing the jurisprudence along those two axes offers a more coherent construction of the case law and acknowledges the vital interdependencies between the two Amendments.

Keywords: data privacy, criminal procedure, required records doctrine, Fifth Amendment, third party doctrine, Fourth Amendment

Suggested Citation

Choi, Bryan H., For Whom the Data Tolls: A Reunified Theory of Fourth and Fifth Amendment Jurisprudence (March 11, 2015). Cardozo Law Review, Forthcoming; NYLS Legal Studies Research Paper No. 2576948. Available at SSRN: https://ssrn.com/abstract=2576948 or http://dx.doi.org/10.2139/ssrn.2576948

Bryan Choi (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

Information Society Project, Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520
United States

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