Revisiting the Third-Party Doctrine

Criminal Law Bulletin, Vol. 53 No. 2

25 Pages Posted: 22 Nov 2016 Last revised: 7 Aug 2017

Date Written: October 30, 2016

Abstract

Developed during the 1970’s, the third-party doctrine states that one has no reasonable expectation of privacy regarding information that they voluntarily disclose to third parties. The Government can therefore access this information without a warrant. However, the cases giving rise to that doctrine misapplied well established Fourth Amendment law.

In addition, recent Supreme Court decisions make it clear that a proper Fourth Amendment analysis requires a consideration of the quality and quantity of data involved. Given the monumental differences in both the quality and quantity of data stored with third parties today as opposed to 40 years ago, the third-party doctrine is no longer applicable in modern society. Consequently, the Government should be required to obtain a warrant before obtaining data stored with third parties.

Keywords: Third-Party Doctrine, Third Party Doctrine, Fourth Amendment, Metadata, NSA, CSLI, Surveillance, Smith v. Maryland, United States v. Miller, United States v. Jones, Riley v. California, Katz, Third Party, Third Parties

JEL Classification: K14

Suggested Citation

Friedman, Perry, Revisiting the Third-Party Doctrine (October 30, 2016). Criminal Law Bulletin, Vol. 53 No. 2. Available at SSRN: https://ssrn.com/abstract=2871831

Perry Friedman (Contact Author)

Independent ( email )

No Address Available

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