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?