Of Third-Party Bathwater: How to Throw Out the Third-Party Doctrine While Preserving Government's Ability to Use Secret Agents

Abstract

In the last couple of years, thanks in large part to Carpenter v. United States, more attention is finally being paid to the "third-party doctrine." It says that, once an individual shares information with a "third-party," he or she no longer retains a "reasonable expectation of privacy" in that information, and so government may obtain the information, from the third party, without a warrant.

In this article, published in Summer 2014, I proposed my solution to the problem presented by this doctrine. One year prior to its publication, Edward Snowden made his revelations about our government's systematic, unjustified surveillance of ordinary Americans. Having already spent some time thinking about the doctrine, I realized that it was the legal doctrine that purported to make such surveillance legal, and so we needed to understand how it came about, and what should be done about it.

I elaborate on my proposal in the Center for the Legalization of Privacy's recently filed brief in United States v. Facebook, still currently pending in Federal District Court. (The brief is also available on my author page here.) But the essence of my solution, my original thinking about it, is in this 2014 article.

In Part I, I discuss the third-party doctrine, including its history, the types of cases to which it has been applied, and arguments in favor of and against it, with particular focus on Orin Kerr's defense of the doctrine.

In Part II, I propose an alternative -- and, I think, better -- way of dealing with cases typically thought to fall under this doctrine. My proposal rests upon the model for the legal protection of privacy that I have elucidated and defended in prior articles: a model based on our rights to property and contract.

Finally, in Part III, I enlist the help of the common law of contract to address an objection to my proposal, in hopes of improving its appeal to the reader.

Keywords: privacy, third-party doctrine. fourth amendment warrant requirement, Edward Snowden