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The Third Party Records Doctrine in the Digital Age

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In 2013, Associate Justice Sonia Sotomayor’s concurring opinion in United States v. Jones received effusive media coverage.[1] In Jones, the Court held that the Government’s installation of a GPS device on a vehicle, and its use of that device to monitor the movements of the vehicle, constitutes a search under the Fourth Amendment.[2] Associate Justice Scalia, in delivering the opinion of the Court, wrote that while surveillance of a target’s movements, involving multiple agents and vehicles over a four week period, would have been constitutionally permissible, achieving the same results through electronic means without an accompanying physical trespass could be an unconstitutional invasion of privacy, but the present case did not require the Court to answer that question.[3] While agreeing with the Court that a search within the meaning of the Fourth Amendment occurs when the Government obtains information by physically intruding on a constitutionally protected area,[4] Justice Sotomayor wrote that, “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”[5] Justice Sotomayor went on to elaborate that the third-party doctrine is “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”[6] MSNBC hailed Justice Sotomayor’s concurrence as more than just a legal opinion, but rather, “a legal manifesto on privacy for a digital age”[7] while The New Yorker pondered, “Can Justice Sotomayor Stop the N.S.A.?”[8] However, Justice Sotomayor expressed caution regarding the implications of her concurrence.[9] Furthermore, despite recent circuit splits regarding Fourth Amendment protection of cell-site data, it remains doubtful that Justice Sotomayor’s concurrence represents a coming sea-change in the third-party doctrine.

The third-party doctrine, established in Smith v. Maryland and United States v. Miller, holds that individuals lack a reasonable expectation of privacy in information knowingly revealed to a third party. In Miller, the Court held that there is no reasonable expectation of privacy in documents voluntarily conveyed to a bank and exposed to its employees in the ordinary course of business, noting that an individual, in revealing their affairs to another, risks that information may be conveyed to the Government.[10] In Smith v. Maryland, the Court held that, as telephone users voluntarily convey and expose that information to a phone company and its equipment, a device that records only the phone numbers that are dialed and is installed on telephone company property does not constitute a search for the purposes of the Fourth Amendment.[11]

Critics of the third-party doctrine argue that the doctrine was established at a time very different from the present.[12] While people communicated primarily through phone calls, letters, and faxes around the time of Smith v. Maryland, online communication and commerce today create records in the hands of third-parties.[13] While the Court based its decision in part on the fact that recording dialed telephone numbers did not reveal much about the call itself (the purpose of the call, the identities of the parties communicating, or whether the call was even completed), noncontent information today may reveal intimate details of a person’s life. In her concurring opinion in United States v. Jones, Justice Sotomayor wrote that GPS monitoring creates a “comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”[14]

Recent circuit decisions appeared to create a split that could have resulted in the Supreme Court reviewing Fourth Amendment protection for cell phone users’ historical cell-site location information (CSLI). Historical CSLI identifies the cell sites to and from which a cell phone has sent or received radio signals as well as the particular time these transmissions occurred.[15] As a cell phone connects to the station that has the strongest signal (which is often the closest), it is possible to approximate the location of the cell phone at the time the transmission was made.[16] In United States v. Graham, the Fourth Circuit Court of Appeals held that the Government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical CSLI for an extended period of time. As examination of an individual’s historical CSLI could reveal “private activities and personal habits,” cell phone users have an objectively reasonable expectation of privacy in this information.[17] However, the court refused to apply the exclusionary rule due to the government’s good faith reliance on the Stored Communications Act.[18] Conversely, in United States v. Davis, the Eleventh Circuit Court of Appeals held that, like the bank customer in Miller and the phone customer in Smith, there is no reasonable expectation of privacy in business records that reveal the cell towers that connect a user’s calls.[19]

While the Supreme Court denied certiorari for Davis, the Fourth Circuit Court of Appeals recently granted the government’s petition for a rehearing en banc in Graham. The Fourth Circuit’s grant of a rehearing eliminates the circuit split with the Eleventh Circuit.[20] For now, it appears unlikely that the Supreme Court will decide whether the Fourth Amendment applies to government collection of cell-site records and if there is a reasonable expectation of privacy in those records.

[1] See Orin Kerr, Justice Sotomayor on her privacy opinion: Remember, I was only one of nine, Volokh Conspiracy (January 27, 2014)

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/01/27/justice-sotomayor-on-her-privacy-opinion-remember-i-was-only-one-of-nine/

[2] United States v. Jones, 132 S. Ct. 945, 949 (2012).

[3] Id. at 953-954.

[4] Id. at 957.

[5] Id.

[6] Id.

[7] See Adam Sewer, How Sotomayor undermined Obama’s NSA, MSNBC (December 23, 2013, 5:43 PM) http://www.msnbc.com/msnbc/how-sotomayor-undermined-obamas-nsa

[8] See Lynn Oberlander, Can Justice Sotomayor Stop the N.S.A.?, The New Yorker (June 7, 2013) http://www.newyorker.com/news/daily-comment/can-justice-sotomayor-stop-the-n-s-a

[9] Kerr, supra note 1.

[10] United States v. Miller, 425 U.S. 435, 443 (1976).

[11] Smith v. Maryland, 442 U.S. 735, 745 (1979).

[12]See Orin Kerr and Greg Nojeim, The Data Question: Should the Third-Party Records Doctrine Be Revisited? ABA Journal (August 1, 2012, 9:20 AM).  http://www.abajournal.com/magazine/article/the_data_question_should_the_third-party_records_doctrine_be_revisited/

[13] See id.

[14] United States v. Jones, 132 S. Ct. 945, 955 (2012).

[15] United States v. Graham, 796 F.3d 332, 343 (4th Cir. 2015).

[16] See id.

[17] Id.

[18] United States v. Graham, 796 F.3d 332, 338 (4th Cir. 2015).

[19] United States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015).

[20] Orin Kerr, Fourth Circuit grants rehearing, eliminates split, on cell-site surveillance, Volokh Conspiracy, (October 29, 2015).

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/10/29/fourth-circuit-grants-rehearing-eliminates-split-on-cell-site-surveillance/


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