Sharing is caring, which is why the government loves it so dearly. The third party doctrine holds that when a person “shares” information, data, writings with a third party, there is no longer an expectation of privacy such that it is protected by the Fourth Amendment and a search warrant is required for the government to search and seize it. And the most interesting man on the TSA security line, Stewart Baker, explains why this is right and just.
The theory of Smith [v. Maryland] is that I have a reduced privacy expectation in things I’ve shared with others. Life teaches us the same lesson.
When you hit “save,” are you “sharing” with the cloud? Is it your way of telling Google employees that you’re fine with them to read your emails, that you’re part of a big happy family that has no secrets?
The case against it seems pretty obvious. Privacy advocates are glad to tell us that the pace of technological change requires that we expand fourth amendment protections. “We’re putting our entire lives on line,” they say. “The government’s ability to collect and analyze data is growing. Only expanding the fourth amendment can we even the balance that protects our privacy. ”Or more colloquially, “Some new technologies are just plain creepy, especially in the hands of the government, and we want the fourth amendment to save us from them.”
By “they,” I can only assume that Baker held a secret conference at Busy Bee Nursery School, and these are the reactions he received from those students who remained awake during nap time. He doesn’t cite to anyone making the “creepy” argument, and I’m unaware of anyone having done so. I engage in this speculation only because of generosity, as the alternative is that Baker has created a moronic strawman argument for the purpose of winning his point. That would be unkind of me to say.
The problem with that argument is that definitions of “creepy” change pretty fast.
Today, though, Google has democratized the clippings file, and it’s too common to be creepy. Much as we may regret what we said to a reporter back in 1997, there’s no point in feeling violated every time it shows up in search results. So we don’t. We adjust.
The line between “creepy” and not isn’t fixed. It creeps. This makes it very dangerous to build a fourth amendment doctrine on the relative creepiness of new technologies.
Just as Baker believed the problems Americans have with being subject to the hands of TSA workers on our children relate to it making us look uncool, the problem with the Third Party Doctrine isn’t that tech is creepy, but that it opens every aspect of our lives to government intrusion and eviscerates any potential for privacy.
Even if Baker has no issue with children’s “private parts” being touched by unknown adults (which, I might add, surely is far more worthy of the “creepy” contention), that fails to provide an explanation on why we should be similarly good with our lives being an open book to the government.
If you want to know what information Americans really value, and what technologies they really find creepy, Smith v. Maryland turns out to be a pretty good proxy – and certainly better than consulting a panel of nine Baby Boomers. When Americans share certain data, they are voting with their feet – giving up some privacy for the sake of something they value more. By now everyone understands the social media business model; we’re getting the service because we are giving up the data. And most of us have been occasionally surprised and disconcerted by the ways in which the data has been used. Sometimes we decide that we value our privacy more than the service, and we quit. More often, we don’t.
There are three schools of thought on this issue. Baker’s assumption that by using tech, we knowingly give up our privacy, realizing that it all ends up in the hands of a third party (despite what any tech provider or cloud storage biz claims), is only partially true. A great many people know that tech exists, without having a clear appreciation that they are putting their most intimate secrets into third party hands, or the consequences of doing so.
The second view is that while users know that Google knows their every move, the mass of data collected precludes them from knowing the details. It’s a tiny part of a huge pile of amorphous data, and we retain anonymity by virtue of the quantity.
The third view is Baker’s, that we use Google because we’re intentionally trading off privacy for cool high tech fun and convenience. We know what we’re giving up, and we “voting with our feet” by doing so anyway. And if it’s good with us, why shouldn’t it be good with the government.
Posts like Bakers are dangerous to those unfamiliar with the Third Party Doctrine and its infirmities because they so bizarrely misstate the problem and the rationale. A commenter calls Baker “naïve,” but that’s highly unlikely. Baker is many things, but hardly naïve.
His core substantive argument, that we put our lives into the hands of third parties willingly by using technology, is as disingenuous as the TSA’s argument that we willingly invite their touching children’s bodies by choosing to fly. After all, we can always take our Conestoga wagons across the country if we don’t care to have our children touched, right?
Technology is integral to modern life, and our use of it is not an indication that we “share” our data with third parties. Rather, we view the third parties as blind custodians of our information, where they hold it on our behalf and would have no reason in the world to access it and read it for their amusement. We reasonably believe it to be safe and secure, knowing that there aren’t millions of elves in back rooms at Google inspecting every email or upload.
That it is in the putative hands of a third party is undeniable. The cloud has it, whoever the cloud may be. But this reflects neither an intention to relinquish our privacy interests in it, nor an expectation that of the billions of bits of data transmitted daily, ours will be of such particular interest that it would be pulled our of the morass of data and viewed. We are not sharing. We are storing.
While Baker’s claim, that concerns derive because it’s just “too much” loss of privacy, has some normative appeal, the reality is that the perpetuation of the Third Party Doctrine in the face of technology untethers the rubric from the rationale. We are given a choice, use tech and give up privacy even if that’s not our intention at all, or go back to burning candles.
He’s correct that under Smith v. Maryland, the state of the law is that by using the cloud, the vast array of servers that exists somewhere and holds our data, it falls within an exception to the Fourth Amendment as we have no reasonable expectation of privacy in information placed in the control of third parties.
The state of the law may have been fine when we were handing over a letter to a friend, and there could be no doubt in anyone’s mind that their privacy was subject to that friend’s discretion. But that’s not our expectation of the world anymore, nor can it be unless we’re to unplug all our screens and go back to our Conestoga wagons.
The Third Party Doctrine must go, or we’re limited to the choices of eschewing all technology or giving the government carte blanche to rifle through lives at will. While these choices may be satisfactory to Baker, most of us will find them untenable and unacceptable. If the trade-off is a judicially crafted exception to the Fourth Amendment that makes the government’s law enforcement investigations easier against a world where we can have both technology and privacy, the latter offers the only viable future, despite Baker’s simplistic vision.
Update: WaPo Conspirator Orin Kerr has chosen to jump into this mess.
Finally, I agree with Stewart Baker that the line-drawing problem once you reject Smith v. Maryland poses a major problem for Smith‘s critics. I wrote about that at length here and here. In my experience, critics of Smith don’t have much of a response. For example, in our debate on the third-party doctrine, NYU lawprof Erin Murphy had a particularly candid reply to the problem of what would replace Smith: “Truthfully, I have no idea.” I think that’s a problem. If Fourth Amendment scholars who strongly oppose Smith themselves don’t know what should replace it, the need to come up with an alternative should at least give some pause to generalist judges faced with the problem for the first time.
An obvious first problem is that he’s only tested his line-drawing problem with “scholars,” as opposed to lawyers. He never asked me. Second problem that the issue raised in application of Smith to the internet isn’t a criticism of Smith (which deserves criticism, but for other reasons), but the extension of Smith beyond the stretch of the rubric. If he wants a new line, he knows where to find me.
But even without a new line, per se, the wrongfulness of Smith in the digital age is clear and apparent. So the absence of an agreed-upon line doesn’t make Smith good doctrine, but shows that we need to work harder on finding a new line.