The Third-Party Doctrine and your Cell phone

Kris Sula

J101 Intern

Hello Street Law Advocates, 

When thinking about the Fourth Amendment and the protections that it offers, most Americans are quick to think about the more glaring violations and the protections needed to address those infractions. One might imagine the police attempting to search a home without a warrant or the police asking to search a car during a traffic stop. While these are great examples of some of the things the Fourth Amendment protects against, for other actions it isn’t as clear. 

For example, does the Fourth Amendment protect against data collection by modern technologies? To tackle this question, we can look at what courts have said in the past and use it to try to envision what the future of Fourth Amendment protections will look like. 

As technology advances, the prevalence of non-physical personal data has expanded dramatically. Advancements such as location data gathered by your phone or smart car, health data gathered by a smart watch, and even video and audio gathered by home surveillance systems and video doorbells, are all examples of non-physical personal information. This information is collected by third parties and stored by them. This data can be extremely valuable to law enforcement, as well as private companies, and is often unprotected by the warrant requirement of the Fourth Amendment. [1] 

First, we must look at how courts have ruled on this kind of information before and what kind of protection it gets under the Fourth Amendment. Historically, information that an individual willingly shared with a third party was subject to what is known as the Third-Party Doctrine. The Third-Party Doctrine essentially states that any information that a person willingly shares with a third party is not subject to Fourth Amendment protection. [2] The doctrine was fleshed out in two major Supreme Court cases in the 1970’s; United States v. Miller and Smith v. Maryland. [3] In both cases, the Court ruled that information shared with a third party would not receive Fourth Amendment protection. [4] This holding was the law of the land for some time without much controversy, that is until the mid 2000’s. 

With the rise of mobile telephones, wearable tech, and people generally creating more data that was being shared with third parties, law enforcement began capitalizing on this expanding stream of third-party data. Due to the Third-Party Doctrine, law enforcement was able to get their hands on all this data unchallenged. This data was immensely valuable to law enforcement because it provided them will all kinds of personal information about people without the need for a warrant. This kind of free reign that law enforcement had was reeled in with the decision of the Supreme Court in Carpenter v. United States. 

In Carpenter, the Court ruled that while the Third-Party Doctrine did cover information that was voluntarily shared, an individual's phone location data was not something that was covered under the doctrine. [5] The Court reasoned that since cell phones have become so commonplace in our lives, coupled with the fact that phones are designed in a way that they must collect and share data gathered with third parties, that the information could not be considered voluntarily shared. [6] To put it differently, the retrospective nature of this data — stored for years by third-parties — allows the government “travel back in time” and effectively tail anyone continuously, even if they were not a suspect at the time of their actions.

The Carpenter case was the first instance that the Supreme Court held explicitly that the Third-Party Doctrine was not absolute. [7] Although the US Supreme Court rejected applying the rule from Miller and Smith, the Court did not overrule those decisions, leaving the Third-Party Doctrine intact. 

The Carpenter decision gives us the ability to look ahead and make some predictions about the future of Fourth Amendment protections as applied to non-physical data. As more and more people access and utilize smart cars, wearable tech, and home surveillance systems, the data collected by these systems will only increase and courts will be left grappling with the question of whether this data should be subject to protection under the Fourth Amendment, and if so, to what extent. If the Carpenter ruling is any indication, it shows that courts may change their ideas about how the Third-Party Doctrine should be applied as the complexity of technology advances. Technology which collects and shares data while being integral to our lives may force courts to broaden the scope of Fourth Amendment protections in order to strike a balance between allowing the government to carry out its law enforcement functions while also keeping the rights of Americans fully protected under the United States Constitution. 

Sources: 
1. The Fourth Amendment in the Digital Age, The Brennan Center for Justice, https://www.brennancenter.org/our-work/policy-solutions/fourth-amendment-digital-age
2. Third Party Doctrine, Injustice for Justice, https://ij.org/issues/ijs-project-on-the-4th-amendment/third-party-doctrine/ 
​3. The Third-Party Doctrine and The Fourth Amendment, Eisner Gorin LLP, https://www.thefederalcriminalattorneys.com/third-party-doctrine 
4. Id. 
5. Carpenter v. United States, 585 U.S. ___ (2018) 
6. Id. 
7. Explaining the Fourth Amendment: What counts as persons, houses, papers, and effects?, Pacific Legal Foundation, https://pacificlegal.org/explaining-the-fourth-amendment-what-counts-as-persons-houses-papers-and-effects/#part-1V:-Effect