The Third-Party Doctrine has been a subject of debate since it was first introduced in the ’70s. The doctrine, first detailed in the cases of United States v. Miller and Smith v. Maryland, states that a person does not have a reasonable expectation of privacy in information that he/she voluntarily turns over to a third party. In Miller, police obtained bank records without a search warrant in order to tie Miller to an undocumented whiskey distillery. In Smith, the police, again without first obtaining a search warrant, used a pen register to figure out what phone numbers Smith had dialed. In both cases, the Court found that there was no reasonable expectation of privacy that would require the police to first obtain a search warrant, because in both cases, the defendants had willingly turned information over to a third party. As such, the evidence in both cases was admissible at trial.
While the sureviellance at the time of Miller and Smith did not seem overly intrusive, the doctrine has remained relatively unchanged in the nearly 45 years since its inception. In a world where technology is increasingly needed to participate in everyday life, however, this poses significant problems. We live in a world where the use of certain technology is no longer an optional luxery, but rather it is a necessity in order to be able to carry on with everyday life. We are constantly carrying our cell phones and using applications where we are turning massive amounts of information over to third parties. Our phones can track every single place we go and do so in effortless fashion. By the logic of the outdated Third-Party Doctrine, this information could be obtained by police without a search warrant and admitted at trial. It is easy to see how this power could easily be abused by law enforcement. As technology increases, so does the need for the Third-Party doctrine to adapt and mold to modern-day lifestyles.
Recently though, in 2018, there was a breakthrough. In the case Carpenter v. United States, the Court held that the use of 127 days of CLSI data (data that works as a sort of time stamp that is created every time a person’s cell phone connects to a nearby cell cite) to track the whereabouts of a man constituted a violation of his reasonable expectation of privacy. The police did not obtain a warrant before obtaining the data which led to it being inadmissible at trial.
While this seemed to be a major win in the fight for the Third-Party Doctrine to adapt to modern times, it left a significant number of questions to be answered. Does the ruling apply to other technologies? How long can surveillance be conducted before it violates a person’s reasonable expectation of privacy? Would anything less than 127 days of surveillance data have been admissible? These questions were left unanswered by the Court leading many to hypothesize their own theories about how the ruling in Carpenter should be interpreted. Theories such as the Mosaic Theory which generally states that surveillance only requires a search warrant when the cumulative data paints an intimate portrait into that person’s life; or the Source Rule which serves as more of a bright-line rule that looks at whether the surveillance is that typically used in the digital age, whether the the data was generated by a meaningful choice, and whether it is the type of data that is likely to reveal intimate information. These theories themselves, however, are not without their questions and will likely lead to more scholarly debate as people attempt to make sense of what the ruling in Carpenter means for the Third-Party Doctrine. Only time will tell as technology continues to advance and more challenges are brought against the doctrine.
This blog post is part of the CIMA Law Group Blog. If you are in need of legal help, the CIMA Law Group is a law firm in Phoenix, Arizona which possesses expertise in Immigration Law, Criminal Defense, Personal Injury, and Government Relations.
CIMA Law Group Blog 