The Fourth Amendment of the US Constitution guarantees a person’s privacy and property against arbitrary searches and arrests by the government, unless there is justifiable cause to issue a warrant to execute such searches and arrests. In other words, persons have an inviolable right to their private property and the authorities are limited in accessing that property unless a court issues a warrant to inspect such property due to probable cause. A warrant allows the government to obtain evidence by breaking into someone’s private property, where that evidence might be, and taking it. Though often applied in the context of criminal investigations, the Fourth Amendment’s protection extends well beyond this sphere (Ontario v. Quon, 560 U.S. 746) and includes two distinct analyses: (1) whether a search or seizure has occurred and (2) whether that search or seizure was reasonable. In the modern context, advances in how we share, store, and communicate information have shifted expectations and interpretations of those two components.

Component (1) has historically been interpreted to apply to government intrusion on a person’s “reasonable expectation of privacy”. The type of privacy a person can reasonably expect to have was broadly limited by what came to be known as the third-party doctrine; a principle holding that a person does not have a legitimate expectation of privacy over information that is voluntarily turned over to third parties. For example, in the 1976 case United States v. Miller, the government concluded that a subpoena of the plaintiff’s bank records did not constitute unreasonable search and seizure in violation of the Fourth Amendment because the documents only included information that the plaintiff had voluntarily conveyed to the banks. The Miller court appeared to put a lot of emphasis on the agency of the individual for “taking the risk” that, in revealing their affairs to a third party, that information may realistically be conveyed to the government. In a convenient loophole for the digital age, the court held that even if the information was conveyed to the third party under the assumption of privacy, the Fourth Amendment does not prohibit the government from obtaining that information in turn from the third party.

The third-party doctrine was again applied in Smith v. Maryland, in which the Court ruled that government acquisition of telephone numbers dialed on a landline telephone did not constitute a search on the basis that those who dialed the numbers voluntarily conveyed the dialed numbers to the phone company, and therefore assumed the risk of those numbers being made available to the government.

Applying the third party doctrine to the digital age, where exponentially more (and exponentially more private) information than outgoing telephone numbers is being shared with internet service providers, e-mail hosts, online pharmacies and social media followers, the third party doctrine becomes a dangerous weapon for the government to justify accessing an arsenal of personal information via third party data collectors with a standard that falls well below probable cause – a notion now supported by statute under U.S.C. § 2703. In a world where advances in technology virtually require information to be released to third parties in order to efficiently and effective function – a state of being dramatically exacerbated by the COVID-19 pandemic and the shift to an almost entirely virtual existence – this doctrine needs to be amended to avoid an unconstitutional abuse of power. Considering the need to both protect the rights of citizens and to allow law enforcement to apply valuable investigative tools stemming from the third-party doctrine, a way forward would be to distinguish between information that individuals are knowingly and voluntarily conveying to third parties, from information that citizens may not even be aware is being conveyed to third parties while they go about their normal course of livelihood and business online.

The “reasonableness” component of Fourth Amendment analysis comes into play here. It is estimated that over 90% of Americans own some sort of computer technology through which they share personal information on a daily basis. Information can be instantly obtained without physical trespass. That said, eradicating the third-party doctrine completely fails to consider the legitimate needs of law enforcement to investigate and pursue serious crimes – especially those conducted by sophisticated criminals using the very digital tools that are reshaping our conceptions of privacy. Instead, reinstating the original formulation of the third-party doctrine under which it is reasonable to search and seize information that is voluntarily disclosed strikes an even balance. “Voluntary” can be evaluated based on whether a reasonable person with a basic understanding of the internet and its functions would have a reasonable expectation that information has been disclosed. Courts can and should assume that regular users of technology are not ignorant to the uses and effects of that technology. A public Facebook status, for example, is information voluntarily disclosed. Text messages from an online counseling app between individuals and their therapists, on the other hand, should confer a reasonable expectation that those messages will be kept private. Increasingly, users knowingly and voluntarily share their data for the purposes of enjoying the efficiency and ease that can in turn bring to their lives. Humans today are far more technologically savvy than they were even forty years ago, and can and should be entrusted with agency and responsibility over their own personal data. Limiting the third-party doctrine exception to information that is voluntarily disclosed comports with Fourth Amendment principles and jurisprudence.