66 Pages Posted: 19 Apr 2006
We are all aware of, and many commentators are critical of, the Supreme Court's third-party doctrine, under which information provided to third parties receives no Fourth Amendment protection. This constitutional void becomes increasingly important as technology and social norms dictate that increasing amounts of disparate information are available to third parties. But we are not solely dependent upon the Federal Constitution. We may have more constitutional protection as citizens of states, each of which has a constitutional cognate or analog to the Federal Fourth Amendment. As Justice Brennan urged in a famous 1977 article, those provisions should be interpreted to provide greater protection. Some states have responded, restricting government access to information provided to third parties. But despite this positive development, there is little understanding of which states have diverged from the federal doctrine, what solution they offer in its place, and for what types of third-party information. This Article begins to fill that void.
After briefly describing the federal third-party doctrine, the Article describes two technologies that demonstrate its significance, cell phone location tracking and data mining. The Article then organizes and describes the constitutional jurisprudence of all fifty states. This study reveals that eleven states reject the federal third-party doctrine and ten others have given some reason to believe they might reject it. When combined with the eleven other states that have diverged from the Fourth Amendment on some substantive issue, this is an impressive tally. Not only can this analysis of diverging states be used to encourage others to adopt more protective doctrines, but ideally it can be used to influence the United States Supreme Court. The author favors a broad definition of search restricted by a totality-based consideration of reasonableness, which would require that courts devise a spectrum of protections for different types of third-party information.
Keywords: fourth amendment, search, third party, technology, state, expectation of privacy
Suggested Citation: Suggested Citation
Henderson, Stephen E., Learning from All Fifty States: How to Apply the Fourth Amendment and its State Analogs to Protect Third-Party Information from Unreasonable Search. Catholic University Law Review, Vol. 55, p. 373, 2006. Available at SSRN: https://ssrn.com/abstract=896947