Reclaiming Our Reasonable Expectation of Privacy: The Case Against the Third Party Doctrine


In the narrow 5-3 decision of Smith v. Maryland 1979, the Supreme Court warranted perhaps one of the greatest intrusions upon privacy with the establishment of the Third Party doctrine. The defendant Michael Smith was found guilty of robbing and sending threatening phone calls to Patricia McDonough. However, the controversy in this case lies not in Smith’s innocence or guilt, but rather in the legality of how the incriminating evidence was obtained: the warrantless use of pen registers. In this case, pen registers were used to record all numbers dialed from Smith’s phone, tracing the threatening phone call back to him.[1] The Court declined to extend Fourth Amendment protections to information Smith gave to the phone company because he had presumptively forfeited ownership over that data the moment he engaged with the third party telephone company. Perhaps this standard was reasonable in 1979, but with the increasing prevalence of third party applications dominating our technologically advanced world, it is time for the Supreme Court to reconsider the applicability of the Third Party doctrine and the threat it poses to an individual’s privacy.

The founding fathers were keen on protecting everyone, regardless of innocence or guilt, from unwarranted government intrusions. However, the Court has continuously struggled to define the scope of an individual’s privacy. In Olmstead v. US 1928, the Court upheld the constitutionality of wiretapping private telephone conversations, setting the standard that only physical trespassing could invoke Fourth Amendment protections.[2] 39 years later, it recognized the intrusiveness of wiretapping private conversations, and fortunately overturned the Olmstead decision in Katz v. US 1967, where Katz was using a payphone to transfer illegal gambling wagers. In this case, the Court not only struck down the constitutionality of wiretapping public payphones, but also adopted the standard of a person’s “reasonable expectation of privacy.” This standard extended Fourth Amendment protections to situations where the person has exhibited an “actual subjective expectation of privacy,” and the expectation is one that society recognizes as reasonable.[3] Justice Potter Stewart explained it best: “the Fourth Amendment protects people, not places” (emphasis added).[4] By shutting the payphone door, Katz displayed a “reasonable expectation of privacy” in an attempt to prevent public intrusion upon his private conversation.

However, the contrasting decision in Smith seems to suggest otherwise, because people are not, in fact, protected when it comes to third party applications. Under the ruling in Smith, any information given to third parties can be accessed by the government with the low standard of “reasonable suspicion.” In 1979, social media was scarce, Facebook was non-existent, and global positioning system navigation (GPS) had not yet been made publicly available. Currently, however, 62.9%[5] of the worldwide population owns mobile phones with location tracking, more than 2.23 billion[6] people have Facebook accounts, and 77% of the American population uses social media.[7]

Modern society is incomparable to the society that existed in 1979. The use of these third party applications in conjunction with the internet has become a crucial part of modern society. Justice Marshall clearly warned the Court about the issue of an evolving society in his dissent in Smith, where he argues against the voluntariness of an action when “no practical alternative exists.”[8] Yet another 39 years later, Justice Marshall is still correct: because technological advances have made third party applications such an integral part of our lives, users have no feasible option except to engage with the technological world. Under the Third Party doctrine, government intrusions have grown dangerously from the use of pen registers to location-tracking and obtaining sensitive information such as text messages from phone companies and data uploaded on iCloud. In order to uphold the intent of the Fourth Amendment against “unreasonable searches and seizures,” the voluntariness of using these applications should no longer equate to forfeiting one’s privacy expectations.

With over a century of legal jurisprudence attempting to strike a balance between security and privacy, one thing remains clear: the protections of the Fourth Amendment must evolve along with technological updates to preserve individual liberties. Today, that means the highest standard of “probable cause” for warrants should be required even for information stored on third parties. As referenced by Justice Brandeis in his dissent in Olmstead, “subtler and more far-reaching means of invading privacy… [will] become available to the government” as time progresses and brings advancements in technology.[9] Although Justice Brandeis had no way of predicting the advances that would occur, like Justice Marshall, he still remains correct. These “far-reaching means of invading privacy” available to government is now known as the internet: a global computer network that has become inextricably linked to third parties and millions of lives. If the intrusion upon a person’s physical home requires a warrant, then the same requirements should extend to a person’s information via intangible platforms (like the internet) because the underlying principle of the Fourth Amendment was intended to safeguard against all government intrusions.

39 years after Smith, the Supreme Court has finally taken one step forward in clarifying the convoluted field of privacy and is perhaps straying from the Third Party doctrine. In Carpenter v. US 2018, Timothy Carpenter was convicted of aiding and abetting robbery with evidence obtained through the warrantless tracking of cell site location information (CSLI). The Supreme Court, in a momentous decision, declined to extend the Third Party doctrine to CSLI because the accuracy of using cell tower triangulation, which is precise to an area of ¾ square mile,[10] is clearly a violation of privacy and “far more intrusive than the precedents might have anticipated.”[11]

Although the Court has taken this first step in acknowledging the implications of privacy with modern technology, the protection against cell-site location tracking is only the beginning of reclaiming and redefining a person’s “reasonable expectation of privacy.” In the modern era, modes of communication and daily tasks have become inextricably linked to technology. Physical documents that used to be physically stored at home are now uploaded onto iCloud. Handwritten letters have evolved into text messages. Daily modes of communication are virtually all online. Physical evidence has undeniably evolved to be a part of third party platforms on the internet. Yet, regardless of where the information is stored, the Fourth Amendment must safeguard against all unwarranted government intrusions. In Carpenter, it became clear that the Third Party doctrine is becoming outdated with all the technological advances. The only question that remains is whether legal jurisprudence will update fast enough to protect individual liberties, or if we will have to wait yet another 39 years to reclaim our “reasonable” expectation of privacy.

[1] “Smith v. Maryland.” Oyez. Accessed October 16, 2018. https://www.oyez.org/cases/1978/78-5374.

[2] “Olmstead v. United States.” Oyez. Accessed October 16, 2018. https://www.oyez.org/cases/1900-1940/277us438.

[3] Busby, John C. “Expectation of Privacy.” Legal Information Institute, 1 Oct. 2017, www.law.cornell.edu/wex/expectation_of_privacy.

[4] “Katz v. United States.” Oyez. Accessed October 18, 2018. https://www.oyez.org/cases/1967/35.

[5] eMarketer. “Number of mobile phone users worldwide from 2015 to 2020 (in billions).” https://www.statista.com/statistics/274774/forecast-of-mobile-phone-users-worldwide/ (accessed 10/16/18, 11:44 PM).

[6] Facebook. “Number of monthly active Facebook users worldwide as of 2nd quarter 2018 (in millions).” https://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/ (accessed 10/16/18, 11:49 PM).

[7] Edison Research, and Salesforce.com. “Percentage of U.S. population with a social media profile from 2008 to 2018.” https://www.statista.com/statistics/273476/percentage-of-us-population-with-a-social-network-profile/ (accessed 10/16/18, 11:50 PM).

[8] “Smith v. Maryland.” Oyez. Accessed October 16, 2018. https://www.oyez.org/cases/1978/78-5374.

[9] “Olmstead v. United States.” Legal Information Institute, www.law.cornell.edu/supremecourt/text/277/438.

[10] Tran, Minh. “Accurate Location Detection.” Federal Communications Commission, transition.fcc.gov/pshs/911/Apps%20Wrkshp%202015/911_Help_SMS_WhitePaper0515.pdf.

[11] “Carpenter v. United States.” Oyez. Accessed October 16, 2018. https://www.oyez.org/cases/2017/16-402.

#Privacy #FourthAmendment #Technology