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Fourth Amendment “Papers” and the Third-Party Doctrine

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Fourth Amendment “Papers” and the Third-Party Doctrine Cite as Michael W. Price, 8 J. NAT’L SECURITY L. & POL’Y ___ (forthcoming 2015) RETHINKING PRIVACY: FOURTH AMENDMENT “PAPERS” AND THE THIRD-PARTY DOCTRINE Michael W. Price* INTRODUCTION Most Americans now live in a world where nearly every call or click online leaves a digital trail that can be stored, searched, and stitched together to reveal an intimate portrait of private life. But current law affords little privacy protection to information about these activities, undermining First and Fourth Amendment safeguards that are essential to individual freedoms and a robust democracy. The so-called third-party doctrine1 has created a privacy gap by denying Fourth Amendment protection to expressive and associational data processed by third parties, including communications information and data stored in the “cloud.” Exacerbated by rapid advances in information technology and a proliferation of third-party records, the gulf continues to widen. Congress has not stepped in to fill the void. The laws that govern online privacy are older than the World Wide Web.2 It is a frequent and wholly justified criticism of the American legal system that a great number of the people in charge of making the rules for modern information technology have little or no experience using email, sending a text, or reading a blog.3 And federal courts have been reluctant to delve into the business of * Counsel, Liberty & National Security Program, Brennan Center for Justice at NYU School of Law. 1 See United States v. Miller, 425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735 (1979). 2 Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (codified as amended in scattered sections of 18 U.S.C.) (2013); Robert Cailliau, A Little History of the World Wide Web, WC3 (1995), http://www.w3.org/History.html (first web browser used in December of 1990). 3 P.W. SINGER & ALLAN FRIEDMAN, CYBERSECURITY AND CYBERWAR: WHAT EVERYONE NEEDS TO KNOW 31–32, 39–40 (2014); Your Own Personal Internet, WIRED (June 30, 2006), http://www.wired.com/2006/06/your_own_person/ (according to the late Senator Ted Stevens, the Internet is “a series of tubes”); Will Oremus, Elena Kagan Admits Supreme Court Justices Haven’t Quite Figured Out Email Yet, SLATE (Aug. 20, 2013), http://www.slate.com/blogs/future_tense/2013/08/20/elena_kagan_supreme_court_justice s_haven_t_gotten_to_email_use_paper_memos.html (Supreme Court Justices exchange messages via paper memo; Court “hasn’t really ‘gotten to’ email.”); The Luddite atop U.S. Cybersecurity, CNN (Sept. 28, 2012), http://security.blogs.cnn.com/2012/ 09/28/the- luddite-atop-us-cybersecurity/ (Department of Homeland Security Secretary Janet Napolitano acknowledged she does not use email “at all”). 1 Cite as Michael W. Price, 8 J. NAT’L SECURITY L. & POL’Y ___ (forthcoming 2015) regulating electronic surveillance,4 with the exception of two recent Supreme Court decisions that hint at a new way forward.5 The Executive Branch, for its part, has taken advantage of the legal turmoil.6 As we now know, in the aftermath of 9/11, the National Security Agency began collecting phone records and online metadata in bulk,7 relying in large part on Smith v. Maryland—a 1979 Supreme Court case that involved one crime and one suspect’s phone records.8 And while there is a bipartisan push in Congress to update the decades-old law that gives electronic communications a patchwork of inconsistent and illogical protections, it remains to be seen whether the reform package will become law. There is a strong temptation to blame the current privacy gap on a divide between so- called digital natives and digital immigrants—those who grew up using computers and the Internet, and those who did not.9 Of course, it is the older generation, the digital immigrants, who make the rules (at least for the moment). Perhaps a new crop of tech- savvy judges and politicians will set things straight? This presumes a great deal about yet-to-be-invented technologies and how different people will use them. And it also assumes that there will be no generational divide in the future. 4 Susan Freiwald, First Principles of Communications Privacy, 2007 STAN. TECH. L. REV. 3, ¶¶ 1–3 (2007). 5 See Riley v. California, 134 S. Ct. 2473 (2014); United States v. Jones, 132 S. Ct. 945 (2012). 6 See, e.g., In re Prod. of Tangible Things from [redacted], No. BR 08-13, at 4–18 (FISA Ct. Mar. 2, 2013) (Walton, J.), available at http://www.dni.gov/files/documents/section/pub_March%202%202009%20Order%20fro m%20FISC.pdf (discussing “systemic problems” with the NSA’s metadata collection and retention policies); [redacted], No. PR/TT [redacted], at 3–4 (FISA Ct. [redacted]) (Bates, J.) available at http://www.dni.gov/files/documents/1118/CLEANEDPRTT%202.pdf (stating the NSA “exceeded the scope of authorized acquisition continuously” during the term of the metadata collection orders and noting the government’s “frequent failures to comply with [the authorizations’] terms”). See generally [redacted], No. PR/TT [redacted] (FISA Ct. [redacted]) (Kollar-Kotelly, J.), available at http://www.dni.gov/files/documents/1118/CLEANEDPRTT%201.pdf (explaining legal rationale for initial bulk collection of telephonic metadata). 7 See, e.g., Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers Daily, GUARDIAN (June 6, 2013), http://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order; James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES (Dec. 16, 2005), http://www.nytimes.com/2005/12/16/politics/16program.html. 8 See Smith v. Maryland, 442 U.S. 735, 737 (1979) (discussing pen register that was installed only to record phone numbers dialed from the suspect’s home phone). 9 SINGER & FRIEDMAN, supra note 3, at 4. 2 Cite as Michael W. Price, 8 J. NAT’L SECURITY L. & POL’Y ___ (forthcoming 2015) The problem with privacy today is doctrinal, not generational. If the Supreme Court intends to afford greater privacy protection to personal data stored electronically, as it seems inclined to do,10 then it may want to consider a new analytical framework for the job. Existing Fourth Amendment tests are not fit for the digital long haul. This article posits a supplemental approach to data privacy, one grounded in the history and text of the Fourth Amendment and easily applicable by all jurists—even those who lack a degree in information technology. The framework is compatible with existing Fourth Amendment tests; there is no need to displace them entirely. But the proliferation of highly personal third-party data demands an avenue for Fourth Amendment analysis that is cognizant of its role in society.11 Section I is a brief history of the Fourth Amendment, focusing on its ties to First Amendment values in the development of search and seizure law. It tells the story of the Court’s doctrinal evolution from a focus on property rights and trespass law to the “reasonable expectation of privacy” test developed in Katz v. United States. The trespass approach is well established and well suited to determining whether the search of a home is constitutional. Similarly, the Katz test may be most appropriate when the issue involves searches of the person12 or even access to medical records.13 But neither of these approaches provides an adequate Fourth Amendment framework for assessing the privacy interest in expressive and associational data held by third parties. A third way may be necessary in order to account for twenty-first-century “papers.” Section II dissects the third-party doctrine, a prime example of how the Katz test led the Court astray on information privacy. I deconstruct the origins of the doctrine and discuss its modern consequences, which have been devastating for digital privacy due to rapid changes in technology and the proliferation of third-party records. The doctrine was a misstep nearly forty years ago, but its full effect has now come into sharp relief and necessitates a course correction. Section III proposes a new, supplemental Fourth Amendment analysis centered on the privacy of one’s “papers,” which enjoy equal billing with “persons,” “houses,” and “effects” in text, if not in practice.14 The Supreme Court has not been eager to articulate 10 Michael Price & Amos Toh, The Supreme Court’s Wisdom on Metadata, AL JAZEERA (June 28, 2014), http://america.aljazeera.com/opinions/2014/6/supreme-court- cellphonessearchwarrantrileycalifornia.html. 11 See Michael Price, I’m Terrified of My New TV: Why I’m Scared to Turn This Thing On—And You’d Be, Too, SALON (Oct. 30, 2014), http://www.salon.com/2014/10/30/im_terrified_of_my_new_tv_why_im_scared_to_turn _this_thing_on_and_youd_be_too/. 12 See, e.g., Terry v. Ohio, 392 U.S. 1 (1968). 13 See, e.g., Or. Prescription Drug Monitoring Program v. U.S. Drug Enforcement Admin., No. 3:12-cv-02023-HA, 2014 WL 562938, at *6 (D. Or. Feb. 11, 2014). 14 U.S. CONST. amend. IV. 3 Cite as Michael W. Price, 8 J. NAT’L SECURITY L. & POL’Y ___ (forthcoming 2015) how the Fourth Amendment should apply to “papers” independent of their physical location in a “constitutionally protected area”15 like a home or office. But in light of the history and purpose of the Fourth Amendment, it is fair to say that “papers” should be read to protect expressive and associational data, regardless of its form, how it is created, or where it is located. Fourth Amendment “papers” may be pamphlets and letters in hard copy, or they may be digital files stored on a cell phone, hosted in “the cloud,” or even generated by a third party.
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