Introduction
How the Fourth Amendment’s third-party doctrine applies to modern surveillance is, of course, an issue of great importance, the answer to which has sweeping implications. In less than a decade, the United State Supreme Court’s decision in Carpenter v. United States has been cited in various court opinions over two thousand times.
Because of rapidly advancing technology and ever-changing societal norms, lower courts today must routinely engage with how the third-party doctrine should be applied to numerous surveillance methods. At bottom, the Fourth Amendment’s third-party doctrine in its current form was only suitable in a world where disclosing information to third-party companies was a meaningfully-voluntary choice, i.e., exposures to third-party companies were always escapable and never automatic.
Today, many records reveal the privacies of life that only exist because of the digital age. Importantly, these records are created without “meaningful voluntary choice.” Not only have they been created without any meaningfully-voluntary choice, but individuals often disclose the information to third-party companies “without a second thought regarding whether these exposures provide the government unfettered access to intimate information.” Modern surveillance has required lower courts to apply the “Fourth Amendment’s protections to novel surveillance practices in cases involving pole cameras, real-time location tracking, drones, smart utility meters, medical data, social media surveillance, cell site simulators, and more.”
In many instances, the digital age and societal norms have removed one’s ability to truly choose whether to share intimate information with third-party companies. Because this lack of a meaningfully-voluntary choice is “alien to well-recognized Fourth Amendment freedoms,” it is vital that the absence of choice does not nullify the protections codified by the Founder’s adoption of the Fourth Amendment. The Court’s third-party doctrine should be adjusted to account for today’s reality. An opportunity presents itself this term—United States v. Chatrie.
To do so, two factors currently considered within the Katz reasonable expectation of privacy analysis, based on the Supreme Court’s decision in Carpenter—the inescapability and automatic nature of disclosures—should be extracted from the Katz “search” analysis.These factors should instead be considered when analyzing whether a potential search was “unreasonable” or not by creating a new warrant exception, the meaningfully-voluntary exposure warrant exception. The Fourth Amendment protects against “unreasonable searches” by the government without a warrant supported by probable cause. Principally, “changing whether the information was inescapably or automatically exposed to a third party does not change whether the governmental action was a search; it instead changes whether the search was reasonable.”
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