University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2009 Lessons from the Common Law of Reasonable Expectations Richard A. Epstein Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Richard A. Epstein, "Lessons from the Common Law of Reasonable Expectations," 24 Berkeley Technology Law Journal 1199 (2009). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. PRIVACY AND THE THIRD HAND: LESSONS FROM THE COMMON LAW OF REASONABLE EXPECTATIONS By RichardA. Epsteint TABLE OF CONTENTS I. IN T R O D U C T IO N ............................................................................................. 1199 I. TRADITIONAL DOCTRINES ..................................................................... 1203 A. ASSuMPIriON OF RISK AND CONSENT ...................................................... 1203 B. REASONABLE EXPECTATIONS ................................................................... 1206 III. REASONABLE EXPECTATIONS AND THE FOURTH A M E N D M E N T ................................................................................................... 1210 A . THE PRIVATE ANALOGIES .......................................................................... 1212 B . PEN R EG ISTERS ............................................................................................. 1216 C. FOURTH AMENDMENT PROTECTION FOR ORAL EVIDENCE .............. 1218 D . D O CUM ENTS .................................................................................................. 1224 IV . CO N C LU SIO N ................................................................................................... 1226 I. INTRODUCTION The purpose of this Article is to offer some reflections on the Third- Party Doctrine as it has evolved under the Fourth Amendment.' This © 2009 Richard A. Epstein. t James Parker Hall Distinguished Service Professor of Law, The University of Chicago; the Peter and Kirstin Bedford Senior Fellow, The Hoover Institution; and visiting professor at New York University School of Law. My thanks to Paul Schwartz, for his valuable comments on an earlier draft of this Article, and Orin Kerr and Erin Murphy for their insightful presentations at the Berkeley Center for Law & Technology 2009 Privacy Lecture: Confronting the Third Party Doctrine and the Privacy of Personal Information at the Berkeley Center for Law & Technology (March 18, 2009). I should also like to thank Jean Bisnar, NYU School of Law, class of 2010 for her usual expert research assistance. 1. U.S. CONST. amend. IV. The Amendment protects 1200 BERKELEY TECHNOLOGY LAW JOURNAL [VOL. 24:3 doctrine holds that an individual who passes information on to some third party cannot claim any Fourth Amendment protection when the government, with an eye to criminal prosecution, seeks to obtain that information from the third party. The received judicial wisdom is that any person who chooses to reveal information to a third person necessarily forfeits whatever protection the Fourth Amendment provides him. Orin Kerr's formulation captures the breadth of the rule: "By disclosing to a third party, the subject gives up all of his Fourth Amendment rights in the information revealed."2 As Kerr notes, the Supreme Court puts the rule in broad terms: [T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. In other words, "a person cannot have a reasonable expectation of 4 privacy in information disclosed to a third party." This conclusion has been widely attacked.' Professor Kerr's recent defense, which sought to bolster the rationales offered by the Supreme Court, has enlivened the debate. My job on this occasion is to review the debate as someone who comes to the problem from outside the field of criminal procedure, but with a strong commitment to the principles of limited government. In dealing with the vexing question of whether a person has a reasonable expectation of privacy in information disclosed to a third party, I do not think it is necessary to come down clearly on one side or the other. It is more important to parse the arguments in order to develop a [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, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Id. 2. Orin S. Kerr, The Casefor the Third-PartyDoctrine, 107 MICH. L. REv. 561, 563 (2009). As stated, the term "information" is intended to cover both oral communication and the transfer of documents, of whatever kind or description. See generaly id. 3. United States v. Miller, 425 U.S. 435, 443 (1976). 4. Kerr, supra note 2, at 563. 5. For a list of the references, see Kerr, supra note 2, at n.5. 20091 PRIVACY AND THE THIRD HAND unified approach to this question that can win adherents both within the field and beyond it. In the current debate, Kerr is quite right to note that it is difficult to defend the current rule on the grounds that the subject of investigation has assumed the risk that the disclosed information will be used as evidence. Thus it surely begs the central point to insist, as the Court has, that "[b]ecause the depositor [in Millet] 'assumed the risk' of disclosure,.., it would be unreasonable for him to expect his financial records to remain private."6 Yet at the same time, it is tempting to do so, for Kerr's own revised justification for the rule turns on the notion of consent that is subject to parallel objections. He writes: "The Supreme Court should have accepted this consent-based formulation of the third-party doctrine ... So long as a person knows that they are disclosing information to a third party, their choice to do so is voluntary and the consent valid."7 Some support this rule by appealing to the common law distinction between fraud in factum and fraud in the inducement." The former goes to the nature and quality of the act, and is thus said to vitiate consent, by denying its existence.9 The latter takes the opposite tack and assumes that consent has occurred, and then sets it aside against the party who induces it. Since fraud in the inducement still allows for the rescission of the contract, this distinction is immaterial in any dispute between the two parties in ordinary contract law. The difference only manifests itself when third party rights are involved. A holder in due course of a negotiable instrument takes free and clear of the claims of the party who wrote the check if there is only fraud in inducement, but gets no title where there is a fraud in factum, because there is no right to transfer.1" Under standard doctrine, the consent should not be binding against the party whose fraud induced the revelation. 6. See Smith v. Maryland, 442 U.S. 735, 744 (1979). 7. Kerr, supra note 2, at 588-89 (discussing Hoffa v. United States, 385 U.S. 293 (1966)). 8. Kerr, supra note 2, at 588-89; ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAw 1079 (3d ed. 1982). 9. See MODEL PENAL CODE § 213.1(2)(c) (holding that a type of rape is committed if a male has sexual intercourse with a female when "he knows that she is unaware that a sexual act is being committed upon her. ."). For more discussion on the role of consent with regards to rape, see PERKINS & BOYCE, supra note 8, at 1079-80. 10. See, e.g., UNIF. COMMERCIAL CODE § 3-305(2)(c), cmt. 7 (noting that this section "follows the great majority of the decisions under the original Act [on negotiable instruments] in recognizing the defense of 'real' or 'essential' fraud, sometimes called fraud in the essence or fraud in the factum, as effective against a holder in due course."). 1202 BERKELEY TECHNOLOGY LAW JOURNAL [VOL. 24:3 In Fourth Amendment cases, this party is the government, so we are back at square one. Accordingly, in Part II of this Article, I shall examine the twin rationales of assumption of risk and reasonable expectations to assess the extent to which they can afford some basis of understanding the relevant doctrine. In so doing there are two key moves that drive the overall analysis. First, it is necessary to explain why and how the reasonable expectations test should work. It is commonly conceived of as a cross between the subjective and objective understandings of the relevant actors, usually persons who are the subject of a search. Second, I advance an alternative conception from my own work on rights to privacy in connection with the common law tort of invasion of privacy, which avoids the solipsism of identifying reasonable expectations with the position or desires of a single person. Instead the central approach is to use the language of reasonable expectations as a way to forge a sensible set of rules that optimizes social welfare with respect to a given kind of problem. In essence the task is finding that set of rules which, when laid down generally, produces the best mix of privacy and security that can be obtained in light of the limited available knowledge, taking into account that the Fourth Amendment protects not only the guilty, but also innocent persons who may have been swept into a search. Part III of this Article examines how this abstract framework applies to the range of situations, dealing with both documents and words, which are traditionally governed by the third-party rule. In doing so, I address the different types of cases separately in order to make a more precise calibration of the relevant interests.