6.6: Closer Examination of the Third-Party Doctrine

One might be surprised to learn how much authority the “reasonable man” wields in the judiciary. The Supreme Court defers to the judgment of this reasonable man when it distinguishes between police brutality and justified conduct and when it determines negligence in tort law. In 2018, the U.S. Court of Appeals for the Second Circuit even used the “reasonable man” test to decide whether “Whole Grain” Cheez-Its were labeled deceptively. (They were.)

While those domains are certainly important, perhaps the reasonable man’s greatest responsibility is differentiating between information that is entitled to privacy and information that is not. Specifically, the reasonable man is charged with determining whether a citizen’s personal digital records (such as bank records, phone records, and smart device data) can be accessed by the authorities without a warrant.

Pin It! Reasonable Expectation of Privacy

Learn more about reasonable expectation of privacy in this video: reasonable expectation of privacy.

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The Supreme Court applies a reasonable expectation of privacy test to determine when police need a warrant to collect someone’s personal records. If it is “reasonable” to expect that the information in question will remain private, then the police need a warrant to access it. But expecting information that is shared with third parties to remain private has consistently been considered unreasonable by the Court. Because a “reasonable expectation of privacy” doesn’t attach to records stored by third parties, the police do not need a warrant to collect that information. Common examples of these third parties include phone service providers, financial institutions, and parent companies of smart technologies that store data, such as Amazon, Nest, and Google. The Court’s rationale is that information relinquished to a third party cannot reasonably be expected to remain private and thus is not protected by the Fourth Amendment. A famous application of this logic was the Supreme Court’s ruling that the Fourth Amendment allows for the warrantless collection of garbage from outside of a suspect’s home. So, in terms of Fourth Amendment protection, is the trash at the end of your driveway equivalent to your banking records? In the eyes of the Supreme Court, the answer is yes.

This standard has come to be known as the Third Party Doctrine, and it has already been used to allow the warrantless collection of email records, banking records, and internet browsing data. Consideration of this issue is important because as we continue to integrate advanced technologies into our daily lives, the Third Party Doctrine has the potential to erode our Fourth Amendment protection from searches and seizures conducted without a warrant.

Pin It! What Is the Third-Party Doctrine?

Learn more about third-party doctrine in this video: third-party doctrine.

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The Third-Party Doctrine spawned from Justice Harlan’s “Reasonable Expectation of Privacy Test,” first promulgated in Katz v. United States (1967). However, there is a critical distinction between the Third Party Doctrine and the Reasonable Expectation of Privacy Test. The Test established that citizens are entitled to Fourth Amendment protections only if the government violates that citizen’s “reasonable expectation of privacy.” By contrast, the Third Party Doctrine argues that any information shared with a third party is automatically ineligible for Fourth Amendment protection because it lacks any reasonable expectation of privacy by virtue of its relinquishment.

The Third-Party Doctrine and Reasonable Expectation of Privacy Test are fully compatible in some—perhaps even most—situations. Suppose, for instance, that during a celebratory dinner, you discuss your latest bank heist with your accomplice. If the conversation is loud enough that patrons sitting in the next booth overhear your conversation and report you to the police, you cannot claim that your Fourth Amendment right was violated. There is no reasonable expectation of privacy when openly discussing your crimes in public. The tension between the Doctrine and the Test only emerges when the third-party information in question can reasonably be expected to remain private.

Today, third parties have access to more data than ever before. Americans unwittingly share heaps of data with third parties daily: Every phone call, email, text, ATM withdrawal, and debit card purchase that you make is shared with a third party. If you have a smartphone, your location is automatically shared with a third party. Any conversation that you have with an Amazon Alexa is stored in the cloud (a third party). If you happen to install a Nest Learning Thermostat in your home, it “can use sensors and your phone’s location to check if you’ve left, then set itself to an Eco Temperature to save energy.”9 If we view this energy-saving technique through the lens of the Third Party Doctrine, we quickly see that law enforcement agents can legally check whether someone was home at a particular time by subpoenaing Nest and then examining that specific person’s Nest records.