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The Third Party Records Doctrine and Privacy in the Digital Age and Its Role in National Security

Everyday that passes the expectation of privacy of individuals diminishes. The newest technological crazes revolve around monitoring our day-to-day activities and maximizing every second we have. From wristwatches that measure your heart rate and let you read email or text messages at the same time, to smart meters installed at our houses collecting minute-by-minute data about energy consumption to transmit it back to energy companies for more accurate billing.[1] Everywhere we go and in everything we do there seems to no longer be a way to avoid transmitting some our most personal and private details of our life to a third party through the use of technology. In taking into account this reality it’s hard to accept the fact that just by making use of this existing technology we’ve inadvertently renounced to our privacy rights over some of our most personal information that was never intended to be public.

The doctrine that established this precedent has become known as the third-party records doctrine, which was set forth and defined by the U.S. Supreme Court in United States v. Miller and Smith v. Maryland. As it exists today, it allows government authorities free reign to access and use the records and data of individuals that have been disclosed to a third party without providing the most minute of Constitutional protections. For, the Court understands that information disclosed to a third party doesn’t qualify for protection under the Fourth Amendment, since it considers it public information.[2] In Smith v. Maryland the Court examined the use of a pen register by government authorities to record the numbers called by an individual from his home phone. The Court determined this couldn’t constitute a search under Fourth Amendment principles since “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties”, for when “he used his phone, petitioner voluntarily conveyed numerical information to the telephone company”.[3] This determination made clear that the government isn’t required to have probable cause or obtain a warrant in order to carry out this type of activity.

Under the current use of technology this doctrine proves itself inadequate for addressing digital age privacy issues since it fails the reasonable expectation of privacy test set forth in Katz v. United States to determine if a conduct constitutes a search, hence its regulated, under Fourth Amendment principles. For, as Justice Sonia Sotomayor writes in her concurring opinion of United State v. Jones the “premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” 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”.[4]

These comments by a Supreme Court Justice come at a time of increasing litigation against government entities over their use of third party records, which has led to conflicting decisions over the application of the doctrine by lower courts based on the technological changes. New developments in technology have led some of these lower courts to emit judgments against the current interpretation of the third party records doctrine, an example of which is United States v. Graham. In it a court stated that a warrantless extended accessing of a defendant’s cell-site data amounted to an unconstitutional search under the Fourth Amendment.[5]

Now, the lack of consensus and continuous debate about the current reach and applicability of the third-party records doctrine emphasizes the need for the United States Supreme Court to directly re-examine and decide its applicability in modern times, especially considering its current interpretation might represent an infringement upon the rights afforded to individuals under the Constitution. The information being collected under the protection of this doctrine can tell the government more about each citizen than any member of the public could find out by themselves.[6] Therefore, in not extending Constitutional protection to third-party records the Court has left only the government’s self regulations to safeguard an individual’s privacy rights over this information, which on the digital age can reveal most if not all of an individual’s personal life.

This being all the more significant when considering the doctrine’s role within the national security realm, particularly in helping the government monitor and prevent terrorist attacks within the United States. For, it was this doctrine that set forth the foundation of the Stored Communications Act and portions of the USA FREEDOM Act, as well as the legal arguments supporting the National Security Letters procedure and the now defunct bulk metadata collection program. Thus, when looking at this doctrine the Court will have to weigh the national security interests of the government against the legitimate and reasonable privacy interest that individuals have a right to according to modern expectations. For, the current enemies of the nation live in the shadows, and their primary weapons are not guns and bullets but cyber warfare. Consequently, there is a significant amount of interest in providing national security agencies with the necessary power and ability to deal with these new types of threats.[7] Which bears the question, can these two fundamental interests in modern times be truly protected simultaneously? Or will one of them have to be sacrificed for the other?

[1] Natasha H. Duarte, The Home Out of Context: The Post-Riley Fourth Amendment and Law Enforcement Collection of Smart Meter Data, 93 N.C. L. Rev. 1140 (2015).

[2] United States v. Miller, 425 U.S. 435, 443 (1976).

[3] Smith v. Maryland, 442 U.S. 735, 743 (1979).

[4] United States v. Jones, 132 S. Ct. 945, 957 (2012).

[5] United States v. Graham, No. 14-16391, 2015 WL 7687475, at 1 (9th Cir. Nov. 24, 2015).

[6] Saltzburg, Stephen, American Criminal Procedure, 44 (2015).

[7] Alberto R. Gonzales, Advising the President: The Growing Scope of Executive Power to Protect America, 38 Harv. J.L. & Pub. Pol’y 451, 506-07 (2015).


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