Unplanned Obsolescence: Re-examining the Third Party Doctrine in the Digital Age

David Wovrosh, Associate Member, University of Cincinnati Law Review

One of the fundamental rights enshrined in the Constitution ensures that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”[1] The Fourth Amendment shields citizens against government intrusion into matters in which there is a “reasonable expectation of privacy.”[2] In order to lawfully intrude into this sphere of privacy, a warrant is required.[3]

The contours of this privacy expectation seem poised for a tectonic shift. Courts must contend with an antiquated legal understanding of privacy expectations while simultaneously reconciling the realities of a digital age. The majority of jurisdictions currently employ an exception to the warrant requirement of the Fourth Amendment if one voluntarily submits digital information to a third party.[4] Nearly every aspect of digital communication—an inescapable necessity of modern life—is routed through the use of third parties.[5] This third-party doctrine should, therefore, be significantly narrowed to better comport with modern expectations of privacy or eliminated altogether.

Zanders v. State: Highlighting the Need for Reform

A recent case in the Indiana Supreme Court underscores the need for reform. In 2015, Marcus Zanders was arrested in Cincinnati, Ohio.[6] Suspected of robbing a convenience store, the police used the store’s call records to determine Zander’s phone number.[7] An Indiana detective, without a warrant, requested and received cell-site location information (CSLI)[8] from Zanders’ cell service provider.[9] This information allowed police to triangulate Zander’s cell phone movements relative to the location of the cell towers, thereby placing him near the crimes.[10] Over Zanders’ objection, the prosecution introduced the CSLI location information at trial.[11] Zanders was convicted and sentenced to sixty-one years in jail.[12]

The Indiana Supreme Court found no violation of Zanders’ Fourth Amendment rights because he had no expectation of privacy in his CSLI under the third-party doctrine.[13] The third-party doctrine holds that one waives their Fourth Amendment right to privacy if they voluntarily furnish information to a third party.[14] Applying this doctrine, the Indiana Supreme Court joined the Fourth, Fifth, Sixth, and Eleventh Circuits as the majority approach to CSLI and cell data.[15] Only the Third Circuit has explicitly rejected this stance.[16]

The Majority Approach and a Cautious Supreme Court

The Indiana Supreme Court identified two cases to justify application of the third-party doctrine to CSLI.[17] In U.S. v. Miller, the Supreme Court held that checks deposited into a bank account did not receive Fourth Amendment protections because checks are not “confidential communications,” but rather “negotiable instruments to be used in commercial transactions” generated during the ordinary course of business.[18]

The Supreme Court held in Maryland v. Smith that there was no legitimate expectation of privacy in the numbers a person dials from their telephone.[19] The Court rationalized that a privacy expectation in digits actively conveyed to a phone company is “not one that society is prepared to recognize as ‘reasonable.’”[20] In the forty years since Miller and Smith, however, the Supreme Court has articulated the need for a more modern approach to Fourth Amendment protections.[21]

In U.S. v. Katz, the Supreme Court held that warrantless electronic tracking of a phone booth conversation was an unconstitutional infringement on Fourth Amendment rights. The Court reasoned that privacy rights are fundamentally intended to protect people rather than simply safeguard places against government intrusion.[22] In 2012, the Supreme Court held in U.S. v. Jones that the warrantless use of a GPS tracker on a car was a Fourth Amendment violation, noting that the GPS signal could trace the exact movements of the defendant with pinpoint accuracy.[23] Two years later, in Riley v. California, the Supreme Court gave significant weight to Justice Sotomayor’s Jones concurrence in deciding that police had violated Fourth Amendment rights where an arresting officer, proceeding without a warrant, searched through the defendant’s cell phone.[24]

As the Zanders decision demonstrates, courts are using doctrines that were created for decades-old technology and applying it to modern analogues. The majority approach on the applicability of the third-party doctrine to CSLI and cell phone data has become increasingly unworkable. While the Court forty years ago was willing to find isolated, transactional interactions covered under the third-party doctrine, the dispositive question is whether that remains so today.

The Prevalent Role of Technology Today

Ninety-five percent of Americans own a cell phone.[25] Seventy-two percent of Americans are within five feet of their cellphone at any given time.[26] Twelve percent even admit to using a cell phone in the shower.[27] Cell phone usage has ossified into such an inextricable part of modern daily life that the Supreme Court recently quipped that cell phones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”[28] This is a far cry from the kind of phone the Smith court described. Indeed, by invoking a “phone”, one could “just as easily be [speaking of] cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”[29]

It therefore comes as no surprise that investigators and police aggressively use warrantless cell phone surveillance with “little or no court oversight.”[30] Cell phone companies are turning over data and records to law enforcement tens of thousands of times every year.[31] Professional organizations and media have expressed an increasing level of concern at the pervasive use of cell phone surveillance.[32] The central role that technology plays in modern life and the privacy implications of digital surveillance have more recently been noted by the Supreme Court.[33]

The Need for Reform

In constructing the third-party doctrine, it is essential that courts retain a steadfast commitment to the degree of protection established by the Fourth Amendment at the time of its drafting.[34] An increasing societal reliance on telephonic communication led the Court to expand Fourth Amendment protections from a property-centric notion of privacy to an individual-centric understanding, noting that the Fourth Amendment’s underpinning is to “protect people, not places.”[35] By emphasizing society’s reliance on technology, the Court expanded the basic Fourth Amendment protections to include a person’s “reasonable expectation of privacy,” both subjectively as well as a what society is prepared to recognize as reasonable.[36]

By broadly applying the third-party doctrine, the majority of circuits are failing to contextualize the role of technology in society’s expectation of privacy.[37] Justice Sotomayor presciently warned against the dwindling privacy protections afforded modern society. Her concurring opinion in Jones argued that the cumulative effect of mass location data collection allows government entities to “mine” the data of individuals. The ability to mine personal data allows the government to “ascertain, more or less at will, [a person’s] political and religious beliefs, sexual habits, and so on.”[38]

The Supreme Court should embrace the call to reform. Justice Sotomayor’s concurring opinion stated that “fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” as “[t]his approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”[39] Given the pervasive use of digital technology, cellphones should hold equal—if not more—Fourth Amendment protection than one’s home.[40]

The third-party doctrine pivots on the voluntary act of turning information over to the third party.[41] However, one cannot be said to give their electronic communications completely of their own free will. To do so would be to fully discount the enourmous economic and social pressure surrounding digital communication.[42] Furthermore, the majority approach holds that possessing a rudimentary understanding of how the technology one uses suffices to establish a ‘voluntary submission’ to a third party.[43] This presumption, however, leads to absurd results. The average consumer is unlikely to have even a cursory level of understanding of how technology function, especially as the level of technological sophistication increases.[44] The net effect is to hold that the level of constitutionally protected privacy rights decreases as the sophistication of technology increases. The majority position to the third-party doctrine would allow this kind of erosion solely predicated on a blanket presumption that consumers have some scintilla of an understanding of how consumer technology works. This absurd pirouette around a fundamental constitutional guarantee is also a relatively avoidable one. The Supreme Court should require law enforcement to proceed as the drafters of the Fourth Amendment themselves required: with a warrant.[45]

Conclusion

Holding course in its current trajectory, the exception threatens to eclipse the rule. Zanders, has relied on precedent that was articulated for a specific time and place. The third-party doctrine under Smith and Miller must be recalibrated to what society is prepared to consider reasonable. Recent developments in the Supreme Court have hinted at a realization that Fourth Amendment precedent from forty years ago is no longer applicable to the modern era. With an increasingly interconnected world and an expanding police reliance on cell phone surveillance, virtually every aspect of a person’s digital life is susceptible to the third-party doctrine.

The Supreme Court should therefore either fundamentally re-shift the third-party doctrine to better reflect society’s privacy expectations in the digital age or dissolve it completely. The current application of the third-party doctrine renders nearly every aspect of modern life exempt from the fundamental guarantees of the Fourth Amendment and no longer reflects a level of privacy that an interconnected world has come to expect. The price of admission to modern society should not be a waiver of one’s constitutional right to privacy.

[1] U.S. Const. amend. IV.

[2] Katz v. U.S. 389 U.S. 347, 360 (1967).

[3] The Fourth Amendment states that “no warrants shall issue, but upon probable cause . . .”  U.S. Const. amend. IV. A warrant is, however, not required in instances of exigent situations where there is great risk under severe time constraints. See, e.g., Kentucky v. King, 563 U.S. 452, 459-60 (2011).

[4] Smith v. Maryland, 442 U.S. 735, 743-44 (1979).

[5] Riley v. California, 134 S. Ct. 2473, 2490-2492 (2014) (describing cell phone apps and remote cloud storage); U.S. v. Ulbricht, 858 F.3d 71, 96 (2d Cir. 2017) (describing Internet Protocol addresses as third party information); U.S. v. Graham, 824 F.3d 421, 432 (4th Cir. 2016) (“information relating to the sending and routing of electronic communications does not receive Fourth Amendment protection.”)

[6] Zanders v. State, 73 N.E.3d 178, 180 (Ind. 2017).

[7] Id.

[8] CSLI, in its most rudimentary form, is “best understood as an umbrella term that encompasses a broad range of locational data collected by [cell providers] in providing service to cell phone users.” Zachary Ross, Bridging the Cellular Divide: A Search for Consensus Regarding Law Enforcement Access to Historical Cell Phone Data, 35 Cardozo L. Rev. 1185, 1192 (2014).

[9] Zanders, 73 N.E.3d at 180.

[10] Id.

[11] Id. The CSLI used at trial was the cell phone’s historical data showing the exact location where Zanders’ cell phone connected to adjacent cell towers immediately before and after placing a call.  Id. at 182.

[12] Id. at 182.

[13] Id. at 179.

[14] Id.

[15] Id. at 184.

[16] The Third Circuit argued that CSLI itself cannot be said to have been voluntarily given, because the precise nature of the transaction, storage, and logging of the data is unlikely to be known to the user. In re Application of U.S. for an Or. Directing a Provider of Elec. Commun. Serv. to Disclose Records to Govt., 620 F.3d 304, 317 (3d Cir. 2010).

[17] Zanders, 73 N.E.3d at 183-84.

[18] U.S. v. Miller, 42 U.S. 435, 443 (1976).

[19] Smith v. Maryland, 442 U.S. 735, 735 (1979).

[20] Id.

[21] See, e.g., U.S. v. Jones, 565 U.S. 400, 417 (2012) (Sotomayor, J., concurring).

[22] Katz v. U.S., 389 U.S. 347, 351 (1967).

[23] Jones, 565 U.S. 400, 411 (2017).

[24] Riley v. California, 134 S. Ct. 2473, 2490 (2014).

[25] Pew Research Center, Mobile Fact Sheet, Jan. 12, 2017, http://www.pewinternet.org/fact-sheet/mobile/.

[26] Harris Interactive, 2013 Mobile Consumer Habits Study 2 (June 2013).

[27] Id. at 3.

[28] Riley, 134 S.Ct. at 2484.

[29] Id. at 2489.

[30] Eric Lichtblau, Police Are Using Phone Tracking as a Routine Tool, N.Y. Times, March 31, 2012, http://www.nytimes.com/2012/04/01/us/police-tracking-of-cellphones-raises-privacy-fears.html?action=click&contentCollection=U.S.&module=RelatedCoverage&region=Marginalia&pgtype=article.

[31] Mary Anne Franks, Democratic Surveillance, 30 Harv. J.L. & Tech. 425, 456 (2017).

[32] See, e.g., Sarah Robert, American Civil Liberties Union, Court Says No GPS Tracking? How About Cell Phone Tracking? April 6, 2012, https://www.aclu.org/blog/national-security/court-says-no-gps-tracking-how-about-cell-phone-tracking. The ACLU has initiated and continually updated a public records request campaign to highlight the pervasive use of cell phone tracking.

[33] See, e.g. U.S. v. Jones, 565 U.S. 400, 417 (2012) (Sotomayor, J., concurring); Riley v. California, 134 S. Ct. 2473 (2014).

[34] Jones, 565 U.S. at 411.

[35] In articulating the “people not places” expansion of Fourth Amendment protections, the Court warned that “[t]o read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.” Katz v. U.S. 389 U.S. 347, 351-52 (1967).

[36] Id. at 360.

[37] Id. at 352.

[38]Sotomayor also noted that the cumulative effect of mass surveillance could have a chilling effect on other fundamental rights, such as association and expressive freedoms. Jones, 565 U.S. at 416.

[39] Id. at 417.

[40] “Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.” Id.

[41] Zanders, 73 N.E.3d at 183.

[42] Mary Anne Franks, Democratic Surveillance, supra note 31 at 437-40.

[43] Id. at 183.

[44] Rebecca Lipman, The Third Party Exception: Reshaping an Imperfect Doctrine for the Digital Age, 8 Harv. L. & Pol’y Rev. 471, 481 (2014).

[45] U.S. Const. amend. IV.

 

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