The Third Party Doctrine Lives

Doc: I’m very sorry, but your illness is terminal.

Patient: Well, I want a second opinion.

Doc: And you’re ugly.

The 11th Circuit, en banc, has weighed (and I use that word purposefully, given that the entire opinion comes in at 102 pages) in on United States v. Davis, and proclaims the Third Party Doctrine alive. It’s alive!

My ersatz law clerk, Orin Kerr, has dutifully described the underlying circumstances of the case, the arguments and the holding, and done a damn fine job of it, I might add, if you don’t mind his gratuitous insertion of his pet mosaic theory.  The core rationale travels the well-worn path of precedent:

For starters, like the bank customer in Miller and the phone customer in Smith, Davis can assert neither ownership nor possession of the third-party’s business records he sought to suppress. Instead, those cell tower records were created by MetroPCS, stored on its own premises, and subject to its control. Cell tower location records do not contain private communications of the subscriber. This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to Davis, even if it concerns him. Like the security camera surveillance images introduced into evidence at his trial, MetroPCS’s cell tower records were not Davis’s to withhold. Those surveillance camera images show Davis’s location at the precise location of the robbery, which is far more than MetroPCS’s cell tower location records show.

For those unfamiliar, the Third Party doctrine, developed back when Conestogas were all the rage, provides that information we knowingly place in the custody of a third party, say a bank or a telephone company, because they bill us or keep track of it so they can sell it to spammers who will use it to sell us more stuff we don’t want, isn’t ours, but theirs.  So, we have no Fourth Amendment interest to protect in keeping it from the government.

The question is loosely relates to the Katz “reasonable expectation of privacy” test, since we do not, if you’re a judge, have a reasonable expectation of privacy in information in the hands of third parties.  But you know all this, so why bother repeating the obvious.

Sure, the Third Party Doctrine means that you have no privacy in anything electronic, not that much of our lives has anything to do with stuff like computers or smartphones, and the fact that it didn’t seem like a big deal with the Supreme Court when it allowed it in Smith v. Maryland for pen registers, because it wasn’t like the government would put a pen register on our telephones as they were just for drug dealers. We’re not drug dealers, so who gives a damn, amirite?

With precedent so firmly established, even though most of us who aren’t life-tenured might experience the world differently, what could possibly distinguish the government’s ability to conduct anal probes at will?

Even if you’re so ridiculously ignorant as to think that not every bit and byte ends up on someone else’s server, or that “that doesn’t seem right” is a legal argument, the fact is that the Third Party Doctrine remains intact, at least in the 11th Circuit, because it’s the law!!!

But as Orin notes, the court didn’t rest on precedent. Oh no, it came up with an alternative rationale just in case someone, somewhere, with a cooler robe decided that the Third Party Doctrine spelled the death of all privacy in the electronic age.

[T]he reasonableness of a search or seizure is evaluated “under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct. 1297, 1300 (1999). In addition, “there is a strong presumption of constitutionality due to an Act of Congress, especially when it turns on what is ‘reasonable’” within the meaning of the Fourth Amendment. United States v. Watson, 423 U.S. 411, 416, 96 S. Ct. 820, 824 (1976) (internal quotation marks omitted).

Our old buddy, “reasonableness,” which has always been “the linchpin of the Fourth Amendment,” except when it wasn’t and a warrantless search was presumed unconstitutional, rears its amorphous head.  That old warrant clause thingy, which was once honored by no one except in the breach, has morphed into a reasonableness inquiry which renders a search warrant utterly superfluous, since why bother to show probable cause to a neutral magistrate if you can search first and argue reasonableness later?  What’s the worst that can happen, suppression?  Well, if you didn’t do the search, you wouldn’t find it anyway, so no harm, no foul. Plus, there are always that other dozen exceptions that might get you a free pass on admission into evidence.

My slightly snippy commentary notwithstanding, the bottom line is that the Third Party Doctrine is the first line of the death of privacy to the government.  But the second line is the emergence of the “reasonableness” rationale and the demise of the warrant clause altogether.  At some point, the bigger question in light of our use of technology is whether we wish to possess privacy from the government or we’re good with the government having the ability to search every aspect of our lives.

It’s time to get real, and put the academic doctrines squarely in issue: if you’re good with the government being capable of accessing anything and everything that technology allows, then you won’t find this a problem.  But if you hope to maintain some shred of privacy from the government, then we defend ourselves from precedent that puts “legitimate government interests” ahead of our privacy.  Does that sound reasonable?



19 thoughts on “The Third Party Doctrine Lives

  1. Rob

    I’m still chuckling about the ersatz law clerk line. At times I feel almost guilty about how much work Professor Kerr does for me, without even knowing it.

  2. Bartleby the Scrivener

    The doctrine of panem et circenses will keep us safe!

    Why are there no memes about the real threats to our society?

      1. John Barleycorn

        Speaking of which… It is good to see your post titles are once again attempting to wear a smirk to go with their usually snark.

  3. Dave

    We just need a new constitutional amendment, which I would title: GAFW. NE. Get a fucking warrant. No exceptions.

  4. Tweak

    How could it have become acceptable for the government to have warrantless access to ANY record of a citizen’s location at a specific time and date? I don’t care if it is a business record or Little Susie’s diary. How does this pass the common sense test?

    I’m starting to wonder if our Judicial Branch even bothers to read the Constitution at all.

      1. Wrongway

        Ahh.. legal mumbo jumbo..

        dance & twist & rap & duck & dodge.. hell, do anything, even go against the precedents & case law.. anything, to justify ->>(insert Govt Interests).. Court says it’s good, so it is right ??

        are they following the bill of rights?? .. or do they ‘think’ they’re following it & not seeing the harm they’re causing?? (mens rea) ..

          1. Fubar

            I practice advanced mumbo jumbo,
            While watching reruns of Columbo.
            Then I drink enough gin,
            That the visions begin:
            Pink elephants dancing, like Dumbo!

  5. DaveL

    there is a strong presumption of constitutionality due to an Act of Congress, especially when it turns on what is ‘reasonable’” within the meaning of the Fourth Amendment.

    Why does this sound suspiciously like “reasonable is what Congress says it is?”

  6. Dissent

    If I get another psydoc and we sign some some papers, can we get the 11th Circuit committed involuntarily for being out of touch with 21st century reality?

    Asking for a friend, of course.

  7. Prosecutor

    No, the third party doctrine does not allow the government access to anything electronic. Gaining access to the contents of communications, whether text messages or telephone calls still requires a finding or probable cause by a judge. Insinuating the opposite is inflammatory and obscures the issue. What we are talking about here is a record, kept by a private company in the ordinary course of business (this record is kept whether a criminal action or other legal action occurs or or not). These records, like billing records have always been accessible via subpoena, rather than requiring a warrant. This is akin to the law covering the contents of mail – although the contents are not accessible without a probable cause warrant – any information appearing on the outside of the envelope, as we’ll as origin information – is free game, even without a finding of probable cause. It all comes down to whether there is a reasonable expectation of privacy. My argument, if you don’t want the government to know where you are, don’t use a cell phone!

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