READY FOR REVIEW

Reasonability and Expectations of Internet Privacy

-- By EdwardBontkowski - 03 May 2010

The Fourth Amendment of the United States Constitution provides protection from “unreasonable” searches and seizures. One of the specific interpretations of this amendment is the third-party doctrine, which removes Fourth Amendment protection from any information a person reveals to a third party. This rule may be applied to a part of the bill of rights, but it has traditionally been considered a part of criminal procedure since most of its applications end up in criminal cases. Proponents of the doctrine may try classifying it as a consent doctrine, rather than a “reasonable expectation of privacy” litmus test. The advantage of this would be to focus the issue primarily on the advantages of using the rule to pursue criminal behavior, rather than the importance of protecting non-criminal civilians.

Why is the Third Party Doctrine in Effect at All?

Professor Orin Kerr of George Washington University argues that there are two primary goals advanced by the third-party doctrine. The first is that the absence of the doctrine would create an unacceptably convenient situation for criminals. According to Kerr, normal criminal behavior must at some point leave the space protected by the Fourth Amendment and venture into a space accessible to law enforcement officers. When this happens, the beginnings of an investigation that lead to probable cause can be undertaken, and eventually a warrant can be procured on those grounds if necessary. When criminals have the option of using third-party intermediaries on the other hand, it is conceivable to commit a crime in which there is no public access to information of any kind. The Fourth Amendment is used to balance the scales of freedom and security, and without the third-party rule, the balance would be too far from security to adequately defend against criminals.

The second important consequence of the third-party doctrine is creating what Kerr calls “Ex Ante Clarity” in the Fourth Amendment. Basically, the law must be interpreted by law enforcement officials, and without a rule like the third-party doctrine, this would be more difficult for them. The rule makes it easy to determine what information is unprotected by Fourth Amendment rights because that status is determined entirely by the location of the information, rather than by any particular feature of the information itself, or the medium in which it is contained.

The principle most often used to justify the doctrine itself is the idea that individuals who communicate to third parties “assume the risk” of making someone else aware of that communication. Any given person could be working with the government or some other party, and by making any kind of communication, an individual is opening themselves to the possibility that it will be communicated beyond where they had intended.

Is This Reasoning Good Enough?

Despite these several advantages, the third-party doctrine is one of the most argued against and least favored constitutional interpretations around. While it is certainly true that the use of a third-party can make criminal behavior easier, the most obvious and frequent counter to this argument in support of the doctrine is that this simply isn’t a good enough reason alone to deny people what would otherwise be their right to privacy in their interactions. A similar argument based on intuition is typically used against the idea that law enforcement requires as black letter a law as the third-party doctrine. While it is true that having a simple rule makes decisions easier about whether or when various information can be seized or examined, making the job of police easier is not a compelling interest in the face of considering the privacy rights of the population at large.

It is important to consider the way in which the framing of the third-party doctrine as a consent doctrine helps to shift the issue. The court in Katz v. United States recognized that there was a distinct difference between observing the numbers dialed by a phone call and listening to the contents of the call. 389 U.S. 347 (1967) The activity performed by the government in that case would have been a criminal action if performed by a private person. This is important because it illustrates that new technology must be understood in different ways. While the third party doctrine may have been reasonable at a time when every act of communicating information to a third party mean that a person was specifically making another person aware of that information; the situation with modern technology is not necessarily equivalent. The court in Katz obviously recognized that although there was a person on the other end of the phone who could theoretically have been communicating with police, the simple existence of that person was not enough. The third party themselves were not the ones who were in communication with police. It was an additional action which intruded the police into the business of Katz, and that intrusion was what created the unconstitutionality.

Conclusion

In my opinion, the reliance on the idea of an individual assuming the risk attempts too narrowly to pin down a specific interpretation of what should be considered reasonable. The pervasiveness of the internet into all aspects of society and the nature of the way resources are divided make it increasingly convenient and expected to store personal information of some kind or another on a third party network. Society defines what is “reasonable” for a person to assume, and the increasing frequency with which Facebook, Gmail, and other website’s security protocols are debated in a public forum make it at least plausible that there are many people who believe “internet privacy” should not be an oxymoron.

---

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" on the next line:

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, EdwardBontkowski

Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list