Kerr Defends the Third-Party Doctrine

Orin Kerr is a law professor at George Washington University and a blogger on the popular Volokh Conspiracy. He is a thoughtful, open-minded legal scholar, but I don’t think it’s unfair to say that he reliably sides with law enforcement on Fourth Amendment issues.

He recently posted a draft article defending the third-party doctrine, which is an interpretation of the Fourth Amendment holding that a person sharing information with a third party cannot make a Fourth Amendment claim to protection of that information. Use an ISP to transmit your email? No Fourth Amendment protection for its contents. Have a bank account? No Fourth Amendment protection for your banking records. Etc.

He treats as similar two issues that I see as separate: revelations gleaned from informants/agents and from business records. I have always thought of the third-party doctrine as being about business records. My remarks here apply to that area only.

I think the third-party doctrine was never right, and that it grows more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The third-party doctrine exempts law enforcement from the Fourth Amendment’s reasonableness and warrant requirements when it looks at these records.

It’s wonderfully contrarian to run against the grain and defend the third-party doctrine, which has plenty of detractors, but sometimes contrarians can be wrong. I think Professor Kerr is, and here I’ll briefly lay out a few of the fundamental differences I have with his paper—all toward the end of perfecting it before it’s published in the Michigan Law Review next year, of course!

The basic gist of the article is that the third-party doctrine is better than most people think, for two reasons. First, it’s technologically neutral. It prevents criminals from making opportunistic use of technology to circumvent the basic balance between security and privacy struck by the Fourth Amendment. Second, it’s easier to administer than alternatives. The arguments against the third-party doctrine are weaker than most people believe, Kerr says.

Rather than wedging the third-party doctrine into the “reasonable expectation of privacy” framework arising out of Katz v. United States, Kerr argues that the third-party doctrine should be thought of as a form of consent. People sharing information with others are consenting to have it searched.

To make the third-party doctrine more palatable, he argues that substitutes for it help control against abusive practices. These include common law privileges, entrapment law, the Massiah doctrine, First Amendment doctrine, statutory privacy protections, and the rights of third parties themselves.

My differences with Kerr are plentiful. Starting at the 30,000 foot level, my sense is that Kerr is treating the Fourth Amendment as a rule about criminal procedure. Oh sure, it’s classed that way in the legal academy, it has most of its application in criminal cases, and I first studied Fourth Amendment law in my constitutional criminal procedure class. But add this to the list of things I didn’t learn in law school: The touchstone of the Fourth Amendment is the security of the people—all of them—against unreasonable searches and seizures of their persons, houses, papers and effects. “The people” refers to all of us, the law-abiding citizens.

(Kerr’s argument that the third-party doctrine is preferable because it’s easy to administer holds no weight if the rule derogates from the security of the people, and I’m confident that courts and police departments could manage other rules. That’s all I’ll have to say on that point so I can focus on Kerr’s point about technological neutrality.)

The interplay of the Fourth Amendment and technology is interesting, but I don’t think technological neutrality is a terribly relevant or useful metric for Fourth Amendment doctrine. Since the Fourth Amendment was adopted, technology has certainly shifted the scope of human enterprise. I imagine that in the late 1700’s most everything of deep import to people’s lives—personal and professional—happened in or near the home, so it was natural that the home was a place of high Fourth Amendment protection, and “home” was a useful proxy for “what should be protected.”

Since then, technological changes of all kinds have given us the freedom to take our lives outward. We move around much more within our communities and from one to another; we stay in different places and move our residences much more often; we communicate and transact using new technologies; and our things—both tangible and digital—come to rest many more places than they used to.

Focusing on technological neutrality would move our attention off the thing that matters—the security of the people—to whatever privacy people got in the late 1700’s from the buildings they constructed around themselves and lived in. Housing was the technology of the time. It was both the locus of activity and the source of security in persons, papers, and effects. (Thanks to the Fourth Amendment, it provided equal security against others as against the government.) It would be odd to let the technology of that time set the standard. Was there something special about the technology of that particular time that affixed the scope of people’s rights? Why weren’t they set in the era of the caveman? Or … 1957?

In 1967, of course, the Katz Court recognized that the expanded scope of human action needed coordinate expansion of Fourth Amendment protection, and it said in famous language, “the Fourth Amendment protects people, not places.” Katz preserved the security of the people as the technology moved their lives from “inside houses” to “on the phone” and elsewhere.

(It’s interesting to note how many times Kerr refers to the Fourth Amendment as protecting places: “Fourth Amendment protection for information matches the Fourth Amendment protection for the environment in which it is stored.” He could almost be arguing to undo Katz.)

The welcome vision displayed in Katz counsels that the Fourth Amendment should naturally protect people as they come to use other instrumentalities—automated machinery owned by third parties, in particular—to expand the scope of their lives yet again.

Kerr spends a good deal of time explaining how third parties like phone companies, ISPs, online banks, and such allow people to hide illegal behavior that would otherwise take place in public. But this is true of every technology. Fourth Amendment protection for houses allowed criminals to use houses in concealment of crime rather than planning crime in open fields as they otherwise would have had to do. The thing is, letting the vast majority of honest people be confident in the security of their houses has had more benefits than the costs of letting criminals make use of that protection for crime. This will be true of nearly every technology.

Technological neutrality isn’t really relevant. What’s relevant is preserving the same security for people and their stuff that they should have in a free society. It’s a consistent level of this security that matters—not technological neutrality.

A theme unfortunately not running through Kerr’s paper is how much it’s oriented toward victimless crimes, which require much more surveillance than real crime. At one point, he tellingly refers to crime as “the transaction,” not “the theft” or “the murder” or anything like that—“the transaction.” He’s talking about money laundering, prostitution, gambling, bootlegging, and the like.

Real crimes have complainants who tell the police. There isn’t a problem with discovering these crimes or knowing where to start looking for the criminals. The third-party doctrine is intimately bound up with the War on Drugs. Kerr should surface this and grant forthrightly that the third-party doctrine exists for and because of victimless crime laws.

It’s a fascinating idea—and weird—that sharing information with a third party is a form of consent to it being searched by the government. This area deserves more thinking, but my initial impression is that the word “consent” loses the moorings that make it meaningful if consent to a search is imputed to any sharing of information.

The consent argument, and much of Kerr’s other points are bound up with the “reasonable expectation of privacy” doctrine that evolved from Katz. Rather than go through everything now—as I write, it happens to be Friday a little after 5:00 p.m.—I’ll just mention that I have an article coming out soon in the American University Law Review showing that the “reasonable expectation of privacy” test from Justice Harlan’s concurrence is not even supported by the majority’s holding in that case.

There is much more to know about privacy. Kerr treats lost privacy and official abuse as essentially the same, though they’re quite different. (Two chapters in my book on identification policy discuss the free-standing importance of privacy and anonymity.) So many people have thrown themselves onto the “reasonable expectation of privacy” pyre based on that well-intended but mistaken concurrence. It won’t have to happen any more once my article comes out.

I’m going to send Professor Kerr an advance copy. Perhaps the final version of his article will sparkle from the exposure to it!