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Need an alternative to the third party doctrine? Look backwards, not forward. (Part I)

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2 Responses

  1. Brett Bellmore says:

    “Why has the Court applied such a nuanced approach to Fourth Amendment rights when it comes to real property and the home, but not when it comes to informational privacy? ”

    Because only wealthy, influential people have domestic servants, and the wealthy spend a lot more time in hotels, too?

  2. Bob Gellman says:

    I’m not sure how far this analysis will get us with respect to the third party doctrine. My house (hotel room, etc.) is mine, with a few not-difficult complications for landlords and maids and the like. But my bank account is something that represents an activity that involves both me and my bank (and others). Other third party records — think medical records — are the same. It’s not my medical record. My doctor has a direct interest in the record as well. We have a shared interest. My ISP may have less of an interest in my email than my doctor does in my medical record. Amazon? Ebay? Credit card companies? We can look at each third party record keepers and play slice the baloney if we choose, but for many records, there are other interests besides just mine. I’m not sure that it will be easy or simple to trump the third party doctrine with analogies to real property. But I will wait and see what Babak comes up with.

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