The Simpleton’s Guide To The Third Party Doctrine (Update)

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.

UpdateWaPo 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.

22 comments on “The Simpleton’s Guide To The Third Party Doctrine (Update)

  1. Richard G. Kopf

    SHG,

    I agree with almost everything your write except, perhaps, your dependence upon the courts. If Smith is to go, it should be Congress that crafts the rules going forward and not the courts. As you remember, I wrote about the internet some years ago when I declared unconstitutional Nebraska’s restrictions on a sex offender’s use of that medium. I can tell you from that experience that judges (since most of us are old and not tech savvy) are simply not up to the task of drawing proper lines and formulating proper rules. That is doubly so with those on the Supreme Court who seem happy to declare their ignorance of technology as if that ignorance was proof of their superiority.

    Having said the foregoing, I almost as scared to leave this matter to Congress. But, the pressure exerted from the grassroots (and our European neighbors who see this problem much more realistically) may be just enough to spur constructive action. I hope so.

    RGK

    1. SHG Post author

      Judge,

      I agree completely with your view that judges may be one of the worst discrete groups in America when it comes to tech savvy and an appreciation of how it’s used by everyone under the age of 30, and most up to the age of 50, making the courts a really dangerous place for the determination of how to address Katz, Smith and technology. I similarly share your concern that Congress isn’t necessarily a whole lot better, and suggest it may in fact be worse.

      But the exception is judicially created. Nowhere does the Fourth mention a third-party doctrine (noting, of course, that it doesn’t mention suppression either). Placing the scope of constitutional rights in the sweaty palms of legislators, however, is doctrinally problematic. Should an exception to the Constitution be subject to the transitory whims of public support, which ebb and flow with the degree of fear promulgated by the media and government? Moreover, this is but one concern the public may have, with others, such as safety, contradicting it. The point of life tenure for an Article III judge is to immunize him from popularity so that he can take bold measures to protect constitutional rights from the tyranny of the majority.

      I remember a survey conducted years ago, asking people if they would support a constitutional amendment. The one in the question was the Fourth. Not only did most people not realize that it was already in the Constitution, but the survey showed that people were overwhelmingly against it. Political ignorance does not strike me as a good basis for the protection of either liberties or the limitation of government fiat. Judges may not be a great source of comfort, but they’re probably the best option we’ve got.

      1. Jeff Gamso

        A judicially crafted 4th Amendment rule will also apply to the states which are nearly as capable as the federal government of abusing the current third-party doctrine. Congressional action can’t achieve that.

        As a judge once told me, referring to the Ohio legislature though the principle is widely applicable, “They should never mess with criminal law. They just fuck it up.” Same for the Constitution.

          1. ExCop-LawStudent

            The Texas Legislature meets once every two years for 140 days.

            It would be much better if it met once every 140 years for two days.

            I stole that from someone, but I don’t remember who or where…

            1. Richard G. Kopf

              ExCop-LawStudent,

              If Congress were to adopt something like the Health Insurance Portability and Accountability Act of 1996 (HIPAA) for electronic privacy, preemption would likely take place. Moreover, state cops don’t like being sued in federal court.

              My interest in a statutory solution is entirely practical. Courts are very good at applying rules to discrete fact patterns. Courts are no good at writing rules of the road and that goes double for rules dealing the digital age.

              All the best.

              RGK

            2. ecpa

              Congress has already set a higher standard for the government to compel disclosure of some electronic communications transactional records than the Fourth Amendment requires. See 18 U.S.C. 2703(c) & (d). For example, the Fourth Amendment would allow the use of a subpoena to compel disclosure of the “to” and “from” information associated with a subscriber’s email account, but the government is required to obtain a “specific and articulable facts” court order under 2703(d) to get historical “to” and “from” records. Under the statute, these rules are binding on states and the feds. See 18 U.S.C. 2703(c), 2711(4).

  2. drouse

    There are also financial pressures that are moving the data third parties hold into the cloud. As an example, I had a conversation with my sister about her migrating her practice to an electronic patient record system. It came up that all the systems that she was comparing all had the “feature” of cloud storage. My argument was that secure cloud storage was an oxymoron. Hers was that the program’s requirements made the costs of owning and maintaining her own servers was a financial non-starter. They started with a dedicated secure server room and followed with a whole raft of IT practices. Now the powers that be have a choice, the party least likely to put up a fight is the one getting the subpoena.

  3. Edward Adamsky

    I’ve always thought that ordinary people’s “expectation of privacy” was far higher than the Supreme Court has ever thought it to be. People think they are private in their cars, and they think they are private when having a conversation with a friend (notwithstanding the LA Clippers events). The law thinks differently and ordinary people keep being shocked by it. I would think that the law should be made to conform with what real people believe (to some extent, at least) to protect those ordinary (not well educated?) folks who think they have some privacy when the Supreme Court would say otherwise. I haven’t ever heard the Court consider that their standards for privacy don’t match those of real people.

    1. SHG Post author

      I suspect the justices think they’re real people. Just old, isolated, protected, totally out-of-touch real people.

  4. traderprofit

    While I am still searching for the fountain of middle age, I have many young friends. I think we are all deeply concerned about being forced to share information just to get though life without an inordinate amount of wasted time. I ditched Facebook some time ago, and haven’t looked at Linked In in months. I despise those who tweet and use FB, but only when a company is offering them some benefit to do so. I want the benefit but i don’t wan’t to give up privacy.
    Leave it to the legislature? Well, that’s better than leaving it to a government that prevents the legislature from having knowledge of the existence of just how our information is being misused. Leaving decisions to those who have he most to hide is actually a logical proposition.
    Still, it ain’t my first choice.

    T

      1. Gavin Peters

        Why not just presume traderprofit is most familiar with the Westminster System of government, and thus means, what I think in the lingua l’etats unis is “The Executive.”

          1. traderprofit

            SHG:I’m sure you could take me apart on the witness stand. So, more specifically I think it’s clear I’m referring to those in the Executive Branch who justify their highly questionable actions after the fact and only when caught.

            1. traderprofit

              SHG: I am still sure you could take me apart on the witness stand. I have a civil trial attorney friend with 28 years experience who does the “pretzel” shit to me every time he visits. I’m not offended. It’s funny, and it makes me choose my words more carefully. His hypotheticals do drive me nuts.

  5. Gavin Peters

    I was very much bothered by some of the esteemed Mr. Baker’s metaphors. He wanders all over.

    In one example, he talks about photographing people in public streets. Then he talks about photographing lots of people in public streets. In America, I guess we’ve decided both are OK, have zero expectation of privacy, so zero times a lot of people is still zero, or something like that?

    The problem is I have a lot of difficulty connecting this to why it’s just a subpoena to read my gmail account and not a warrant.

    Is he trying to instead talk about expectations of privacy in aggregated databases? That’s another interesting issue but it feels separate. I’m uncomfortable with my current reading of his text because confusing them only muddies the water I think.

    1. SHG Post author

      False analogies are only false if someone notices. And if they’re smart enough to notice, chances are poor they would be inclined to be persuaded anyway.

  6. John Barleycorn

    Please, pretty please, can we get to that part in the novel where the good guys and the bad guys trade places already.

    Sticks and stones are not the uterus nor is the labia the name of that which will never hurt us.

    Give birth to this monster already.

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