Klayman, the Supreme Court, and the Aggressive Third Party Doctrine
This week, in Klayman v. Obama, Judge Leon opined that the NSA’s bulk collection of telephone call record data probably violates the Fourth Amendment. Several commentators have criticized the opinion for insufficient fidelity to Supreme Court precedent. According to the Wall Street Journal’s editors, for example: “The largest flaw is that the Supreme Court already considered the constitutional claims at stake here, and Judge Leon simply waves off the relevant precedent of Smith v. Maryland.” Contrary to such critics, I believe that Judge Leon has his finger squarely on the pulse of the Supreme Court in reading Smith narrowly and stepping away from an absolutist understanding of the so-called “third party doctrine.”
Smith, a 1979 opinion, upheld the warrantless use of a “pen register” to intercept dialed numbers on the grounds that the caller had no Fourth Amendment “legitimate expectation of privacy” because he had “assumed the risk that the company would reveal to policy the numbers he dialed.” Smith is part of a line of Fourth Amendment precedent that uses “assumption of risk” to evaluate reasonable expectations of privacy. For example, a citizen “assumes the risk” that friends in whom she confides might decide voluntarily to report those confidences to the government and the Fourth Amendment does not protect her if they do. In Smith the phone company installed the pen register voluntarily at the request of the police. The Court held that “petitioner can claim no legitimate expectation of privacy here,” because he “assumed the risk that the company would reveal to police the numbers he dialed.” Far from controlling the case, Smith is entirely distinguishable from the NSA’s programs at issue in Klayman. The service providers did not voluntarily turn the telephony data over to the NSA, but were ordered to do so.
The argument that the Fourth Amendment does not apply to the NSA’s program relies on a much more aggressive version of the so-called third party doctrine, under which sharing information with anyone purportedly deprives citizens of all expectations of privacy in that information leaving it entirely without Fourth Amendment protection. As I argued in a 2011 Maryland Law Review article, the foundations for such a doctrine in Supreme Court precedent are extremely shaky. Smith and United States v. Miller are the purported pillars of the doctrine. Smith, as explained above, stands for nothing more than standard assumption of risk analysis in a case where a third party voluntarily reveals shared information to the government.
Miller found no Fourth Amendment violation when a depositor’s bank records were turned over in response to a defective grand jury subpoena. It purports to apply an assumption of risk analysis, emphasizing that the records contained “only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business” and that the “depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the government.” The facts of Miller are inconsistent with the assumption of risk rationale, however. The bank was not a voluntary government informant. Rather, the government obtained the bank’s records illegally, using a defective subpoena. The opinion copes with this problem by simply leaping to the conclusion that the illegality did not matter because the depositor had no Fourth Amendment interest in the information contained in the records. That leap is the foundation of the aggressive version of the third party doctrine. Smith and Miller have been cited rarely in later Fourth Amendment decisions. Only two of those citing opinions, one issued in 1980 and the other in 1984, relate to Miller’s aggressive version of the third party doctrine.
The aggressive version of the third party doctrine, which states that sharing with anyone removes reasonable expectations of privacy as to all, is deeply inconsistent with Supreme Court precedent that clearly establishes that sharing “houses, papers, [or] effects” with particular individuals undermines legitimate expectations of privacy only with respect to those individuals.
Georgia v. Randolph, decided in 2006, explained that “assumption of risk” must be evaluated in light of “widely shared social expectations.” Thus, a tenant or hotel guest does not “assume the risk” that a landlord or hotel manager with access to the premises will admit visitors. Nor do parents “assume the risk” that an eight-year-old child will authorize guests to “rummage through her parents’ bedroom.” In fact the majority held that in the case of a home an individual standing at the door does not even assume the risk that a co-tenant will authorize a warrantless search over his or her objection. Chief Justice Roberts and Justice Scalia dissented in Randolph, advocating a more bright line approach to assumption of risk. They argued that “just as an individual who has shared illegal plans or incriminating documents with another cannot interpose an objection when that other person turns the information over to the government … someone who shares a place with another cannot interpose an objection when that person decides to grant access to the police.”
Both majority and dissenters in Randolph agreed, however, that sharing does not eviscerate privacy in the absolute manner presumed by the aggressive version of the third party doctrine. Thus, after the majority accused the dissenters of the “easy assumption that privacy shared with another individual is privacy waived for all purposes including warrantless searches by the police,” the dissent emphasized that the point “is not that a person waives his privacy by sharing space with others such that police may enter at will, but that sharing space necessarily entails a limited yielding of privacy to the person with whom the space is shared, such that the other person shares authority to consent to a search of the shared space.” As Justice Scalia wrote in a concurrence in O’Connor v. Ortega:
It is privacy that is protected by the Fourth Amendment, not solitude. A man enjoys Fourth Amendment protection in his home, for example, though his wife and children have the run of the place—and indeed, even though his landlord has the right to conduct unannounced inspections at any time. Similarly, in my view, one’s personal office is constitutionally protected against warrantless intrusions by the police, even though employer and co-workers are not excluded.
In fact, callers and internet users clearly retain some legitimate expectations of privacy regarding information about their communications, despite having shared that information with third party service providers. Katz v. United States is the seminal Fourth Amendment case of the modern age. It held that police violated the Fourth Amendment by attaching an electronic device to a phone booth to listen in on calls despite the obvious fact that call recipients, like service providers, are “third parties” with whom information about the communication has been shared. It also is trivially apparent that callers retain Fourth Amendment protection for their own copies of their phone bills containing call data that is shared with the telephone company.
The aggressive version of the third party doctrine is a distraction. The question is not whether citizens retain some Fourth Amendment interests in information about their communications, which they clearly do, but whether they have Fourth Amendment interests in service provider records containing that information that must be taken into account when government officials seek access to those records.
This leads us, finally, to the heart of the issue: When does protecting an individual’s Fourth Amendment interests in private information constrain the government’s ability to obtain that information from third parties? Or, to put the question more generally, when does the Fourth Amendment constrain the government from obtaining an individual’s private information even when it does not employ a traditional search of that individual’s “persons, houses, papers, and effects”?
That, fortunately, is an issue that the Court has confronted before. Katz itself is premised on the Court’s recognition that electronic monitoring of communications should be treated as a search because “[t]o read the Constitution more narrowly [would be] to ignore the vital role that the public telephone has come to play in private communication.” In Kyllo v. United States, the Court recognized that infrared photography could circumvent the Fourth Amendment’s protection of the home and must be recognized as a Fourth Amendment search. Most recently, in United States v. Jones, five concurring justices argued that extended electronic monitoring of public movements had the potential to undermine the “practical” protection that was a baseline of prior law and should be subject to Fourth Amendment constraints.
These cases demonstrate that when technological changes lead to a situation in which an indirect information-gathering approach thoroughly circumvents the Fourth Amendment’s protections against traditional searches of a citizen’s “person, houses, papers, and effects” the indirect approach must be recognized as a search of that citizen. Communications technology now has developed in such a way that orders directed to service providers can circumvent much of the Fourth Amendment’s protections of citizens’ communications and “papers.” Meaningful Fourth Amendment protection depends on treating such compelled disclosures as searches of the citizens involved and judging the adequacy of procedures for compelling disclosure by service providers by Fourth Amendment standards. (As an aside, I note that I have argued here and here that similar concerns bring the NSA’s telephony metadata surveillance program within the purview of First Amendment freedom of association scrutiny as well.)
Ritual invocation of the aggressive third party doctrine is no substitute for confronting the task of determining when compelled third party disclosure circumvents the Fourth Amendment’s protections against traditional searches and analyzing what the Fourth Amendment requires in those cases.