Don't Let It Go

When you text your doctor, share your location with a rideshare app, or use your credit card at checkout, you aren’t broadcasting your private life to the world. You’re sharing specific information, for a specific purpose, with a specific party you’ve chosen to trust—usually under terms of service that promise to keep it confidential. You know this. Your service provider knows this. The only institution in America that pretends not to know this is the federal government, armed with a legal doctrine the Supreme Court erroneously expanded almost fifty years ago.

That doctrine is the third-party doctrine. The Court now has a chance to return it to its original and proper scope in the case Chatrie v. United States, which it is currently considering after oral argument last month. It should seize that chance.

Dragnet searches and Supreme Court precedent

In 2019, the government obtained a “geofence warrant”—a demand that Google hand over location data on every user whose phone happened to be near the scene of a bank robbery.

Not a suspect. Not a person connected to the crime by evidence. Every person in the area.

Google searched its entire Sensorvault database—hundreds of millions of accounts—and produced the results. Okello Chatrie was among them.

The government relied on the third-party doctrine to justify this dragnet search. The doctrine was dramatically expanded without justification in two 1970s cases, United States v. Miller and Smith v. Maryland. Their holding was disarming in its simplicity and devastating in its consequences: if you share information with a third party, you forfeit any “reasonable expectation of privacy” in that information. It doesn’t matter that you shared it for a limited purpose or that your service provider contractually promised to protect it. In the eyes of the law, you might as well have shouted it through a megaphone, from the highest mountaintop, on worldwide livestream.

This was always a dubious proposition, but in the digital age, it’s absurd. Your phone continuously communicates with cell towers. Your search queries exist in databases. Your emails and messages pass through servers. To claim that all of this information is fair game for warrantless government access simply because a service provider processes or stores it is to say that the Fourth Amendment has nothing to offer the twenty-first century.

Read the rest at the PLF blog.