The Third-Party Doctrine

As Julian Sanchez explains, the third-party doctrine holds that the information that individuals disclose to businesses — credit card transactions, phone records, etc. — doesn’t carry with it a “reasonable expectation of privacy” under the Fourth Amendment, as one has “assumed the risk” that this information might at some point be disclosed. Technological innovation has meant that this third-party doctrine has vastly expanded the government’s surveillance powers:

When you buy a book, join a political e-mail list or read a website, a third-party record is created. Even the contents of your private messages or files stored in the “cloud” aren’t really yours, according to this doctrine. Federal law allows them to be obtained without a search warrant in many circumstances. Those old phone logs, meanwhile, have become far more revealing with the advent of cellular technology, which can track your geographical movements in increasingly precise detail.

The result is that a vast array of private information that would previously have required a physical search — and therefore a search warrant — to obtain is now available under a far lower standard. And much of that data concerns domains of speech and intimate association traditionally held to be protected by the First Amendment as well.

Julian notes that at least one prominent jurist, Justice Sonia Sotomayor, has suggested that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” an extremely encouraging development, and further indication that Justice Sotomayor has proven a valuable addition to the Supreme Court. Eli Dourado has more on the implications of the third-party doctrine in the age of cloud computing. 

Reihan Salam — Reihan Salam is executive editor of National Review and a National Review Institute policy fellow.

Most Popular

Law & the Courts

Obstruction Confusions

In his Lawfare critique of one of my several columns about the purported obstruction case against President Trump, Gabriel Schoenfeld loses me — as I suspect he will lose others — when he says of himself, “I do not think I am Trump-deranged.” Gabe graciously expresses fondness for me, and the feeling is ... Read More
Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
PC Culture

Kill Chic

We live in a society in which gratuitous violence is the trademark of video games, movies, and popular music. Kill this, shoot that in repugnant detail becomes a race to the visual and spoken bottom. We have gone from Sam Peckinpah’s realistic portrayal of violent death to a gory ritual of metal ripping ... Read More

Romney Is a Misfit for America

Mitt’s back. The former governor of Massachusetts and occasional native son of Michigan has a new persona: Mr. Utah. He’s going to bring Utah conservatism to the whole Republican party and to the country at large. Wholesome, efficient, industrious, faithful. “Utah has a lot to teach the politicians in ... Read More
Law & the Courts

What the Second Amendment Means Today

The horrifying school massacre in Parkland, Fla., has prompted another national debate about guns. Unfortunately, it seems that these conversations are never terribly constructive — they are too often dominated by screeching extremists on both sides of the aisle and armchair pundits who offer sweeping opinions ... Read More

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More
Film & TV

Black Panther’s Circle of Hype

The Marvel Cinematic Universe (MCU) first infantilizes its audience, then banalizes it, and, finally, controls it through marketing. This commercial strategy, geared toward adolescents of all ages, resembles the Democratic party’s political manipulation of black Americans, targeting that audience through its ... Read More