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A Descriptive Analysis of the Fourth Amendment and the Third-Party Doctrine in the Digital Age

83 Pages Posted: 24 Jul 2017 Last revised: 12 Aug 2017

Peter C. Ormerod

Western Carolina University

Lawrence J. Trautman

Western Carolina University

Date Written: July 19, 2017

Abstract

There are few areas of constitutional law that raise scholars’ ire and trouble jurists like the Fourth Amendment’s third-party doctrine. Making sense of the Court’s distinctions between content and metadata and between personal communications and business records was already difficult with physical documents and analog technologies. But the proliferation of digital technologies has rendered obsolete the factual predicates underpinning those distinctions, and courts have struggled mightily with adapting third-party rules forged over thirty years ago to new technologies.

At the same time, the Supreme Court has become more explicit in fashioning distinct Fourth Amendment rules for digital technologies. In a trio of twenty-first-century decisions, the Court has made clear — often by overwhelming votes — that the old rules no longer suffice.

These two strains of Fourth Amendment law are on a collision course — a collision scheduled for the Court’s October 2017 Term. In June 2017, the Court granted certiorari in Carpenter v. United States, and the question presented is whether the government needs a probable cause warrant to obtain voluminous records about a cell phone’s location — data termed cell site location information (CSLI) — from a wireless provider.

In this article, we first review the Court’s twenty-first-century digital Fourth Amendment jurisprudence to tease out the Court’s differential treatment of digital technologies. We then turn to the existing third-party doctrine and attempt to make sense of the doctrine’s distinctions between content and metadata and between personal communications and business records. We examine how our understanding of the existing doctrine applies to digital information like the CSLI at issue in Carpenter. We conclude by reviewing some types of sensitive digital information that potentially lack Fourth Amendment protection under current doctrine.

Keywords: browsing history, Carpenter v. United States, cell phones, CSLI, constitutional law, digital data, Fourth Amendment, United States v. Jones, location data, metadata, United States v. Miller, privacy, Smith v. Maryland, Stored Communication Act, Supreme Court, third-party doctrine

JEL Classification: D12, D18, K00, K1, K14, K19, K23, K29, K30, K39, K40, K42, K49

Suggested Citation

Ormerod, Peter C. and Trautman, Lawrence J., A Descriptive Analysis of the Fourth Amendment and the Third-Party Doctrine in the Digital Age (July 19, 2017). Available at SSRN: https://ssrn.com/abstract=3005714

Peter C. Ormerod (Contact Author)

Western Carolina University ( email )

United States

Lawrence J. Trautman

Western Carolina University ( email )

204 Forsyth
Cullowhee, NC 28723
United States
828-227-2642 (Phone)

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