It is Time to Make the “Crazy Quilt” of the Fourth Amendment

In Smith v. Maryland Justice Blackmun said the Court was not inclined to make a “crazy quilt” of the Fourth Amendment. I submit it is time to make the quilt. If we agree that privacy is something that society should value the third party doctrine needs to be amended to reflect the number of private corporations we interact with.

The Third Party Doctrine

The third party doctrine says a person has no reasonable expectation of privacy in data they have turned over to a third party. This means if information has been passed to a third party the Fourth Amendment protections do not apply and a warrant is not required to access the data. Smith v. Maryland is the judicial expression of third party doctrine. Applying the Katz privacy test the Supreme Court found that the Smith knew that the phone company was collecting numbers that were being connected to the home and therefore there is no expectation of privacy in this information. In his dissent Justice Marshal rejected the idea that privacy is binary, that once a secret has been told to one person it is told to the world. He says that even assuming the individuals know the company monitors the calls dialed for internal reasons does not follow that they expect this information to be made available to the public in general or government in particular. He also clashed with the majority idea that information had been voluntarily given up to a third party. He says that the decision is only voluntary if you have a choice and that it is incorrect to talk about assuming risks in contexts where there is no realistic alternative.

Why the third party doctrine no longer works in 2018: changing societal norms

Giving up data is no longer a voluntary act (to a certain extent)

Counteracting the time machine effect: can we force it to forget?

In Google Spain v. Costeja the European Court of Justice upheld a person’s “right to be forgotten”. This is actually limited in application as it removes the data from being revealed in a Google search rather than deleting it.

In the US the right to be forgotten comes into conflict with the First Amendment – the right to be forgotten is seen as a form of censorship. An exception to this is [[https://www.dataprotectionreport.com/2015/01/california-enacts-right-to-be-forgotten-for-minors/ ][California’s “online eraser” statute] enacted in 2015. Minors can request their posts be deleted but this has some major limitations – the information might be hidden from the public but remain on a server, and the platform is not required to remove something posted by a third party about the minor including where a third party reposted the minor’s post. The most effective way to remove information from the internet is actually to copyright it and request it to be taken down. Recently a [[http://www.bbc.com/news/technology-43581619 ][woman was forced to copyright her naked body] to obtain control of an explicit video in a revenge porn case.

Will the third party doctrine change?

I submit the circumstances are right for the Court to redefine the third party doctrine. In her concurrence in Jones Justice Sotomayor says “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” I submit it is necessary and it is the Supreme Court’s opportunity to do so in the judgment on Carpenter. Reframing the third party doctrine would be a bold and dramatic move, but leaving this to Congress appears to be an acceptance of the status quo. Oral arguments in that case revealed little by way of legal doctrines. It seems that a majority of justices would be prepared to rule that the Fourth Amendment does not allow for the warrantless search and seizure of historical cell phone data, but the theories that justify the conclusion may vary.

An interesting question remains, if Carpenter results in a change to the third party doctrine, will there be a response by the political branches?

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