A couple irons I’ve had in the fire for some time are heating up this month. First, on January 22 I will be speaking before the New Hampshire House Judiciary Committee in support of a proposed Constitutional amendment that I drafted with Representative Josh Yokela.
You can read the full text here, but in essence the amendment would ensure that the warrant requirement–the requirement that law enforcement show probable cause and particularized suspicion before an impartial judge, in advance of a search or seizure–applies to data shared as part of a legally enforceable contract.
In so doing, the amendment implements, in concise language, my solution to the problem created by the U.S. Supreme Court’s unjustified expansion of the so-called “third-party doctrine.” Those of you who have followed my work are familiar with this doctrine and my critique of it, but for the benefit of those who are new to me or my work:
The third-party doctrine says: once an individual shares information with a “third party” (phone company, bank, social media platform, etc.), the warrant requirement no longer applies to that information. In other words, government need not obtain a warrant before obtaining the information from the third party. Why does the doctrine allow this? The primary rationale offered is that, once an individual shares information with a third party, he no longer retains a “reasonable expectation of privacy” in it. Even if you happen to think you’re sharing information for only a limited purpose, and you expect it to remain private otherwise, the Supreme Court decided, back in the 1970’s, that your expectation is not “reasonable.”
My critique: Contrary to what some Supreme Court justices wrote in Carpenter, this doctrine did not originate in the 1970’s. It grew out of a series of earlier cases called the “secret agent cases.” You can imagine Tony Soprano, in his basement, noisy appliances running to defeat any attempts at bugging, making plans with one of his colleagues/confidants to carry out criminal conspiracies. In those early cases the doctrine provided that, were the colleague/confidant later to rat on Soprano, this would not constitute a search for purposes of the Fourth Amendment. No warrant was required.
This is the sort of context in which the doctrine was applied for decades, until the 1970’s, when the Supreme Court transported it into an ordinary–i.e., non-criminal–business context. Suddenly, with little explanation, the doctrine was held to apply not only to the information shared by the Tony Sopranos of the world, but also to you and me when we share information daily, simply to obtain the goods and services that enrich our lives.
These holdings from the 1970’s were, in my view, unjustified. To see why, we need only apply common law doctrine explaining the difference between the lack of “reasonable expectation of privacy” that naturally exists in the criminal context, and the reasonable, legitimate expectation that you and I retain when we share information with a third party for a limited purpose. That distinction lies in the sort of agreement that exists in each context, and the enforceability of that agreement at common law. In the Tony Soprano scenario, he and his colleague are engaged in an illegal contract, a contract the primary purpose of which is to achieve an illegal (rights-violating) end. Such contracts are unenforceable at common law–including any provisions of such contracts requiring secrecy. In other words, in the secret agent cases, there was no legally enforceable agreement in place protecting the privacy of the information.
The same is not true, however, in the ordinary business context. When you and I make agreements with banks, telephone service providers, internet service providers, retailers, etc., etc., the agreements often, if not always, include promises to use the information collected for only limited purposes. And because these are overall valid, enforceable contracts, provisions like these should be enforced. Consequently, any expectation of privacy we do retain when engaging in such contracts should be deemed “reasonable.” In other words: government, if you want that information, get a warrant. Don’t treat us all like criminals.
Now that I have explained the distinction, let’s look at the text of the proposed amendment. It adds a mere 25 words to Article 19 of the New Hampshire Constitution, to include, among the things in which “[e]very subject hath a right to be secure from all unreasonable searches and seizures…information provided as a part of a legally enforceable contract that is to be used only for a limited purpose and otherwise kept confidential.”
The amendment, if adopted, would literally legalize privacy in the state of New Hampshire, by making it possible for citizens of New Hampshire to make valid, enforceable contracts in which they share information for a limited purpose, and thereby retaining the most privacy possible while obtaining the various goods and services that enrich their lives.
I thank representative Josh Yokela for having the vision to propose this, and for allowing me the opportunity to explain and promote the amendment to the committee. I’m looking forward to it!
Just two days after that hearing, on January 24, a round of briefs are due in United States v. Facebook. In that case, Judge Timothy J. Kelly has ordered both Facebook and the Government to respond “to all the arguments presented by all amici curiae.” That includes the arguments presented by CLP in its brief back in October.
Popcorn?
I’m excited about the progress that we’ve made over the last several months! If you want CLP to continue to Legalize Privacy in 2020, donate here. We simply cannot continue to do it without your support. Thank you!