Looking back to look forward: reexamining the application of the third-party doctrine to conveyed papers.

• Author: Ernst, Colleen Maher

The third-party doctrine maintains that individuals lose Fourth Amendment protection for information knowingly revealed to third parties. Applying this rule, courts have held that individuals lack Fourth Amendment protection for, among other things, numbers dialed on a phone (1) and trash left in a sealed bag on their curb. (2) Many scholars criticize this doctrine, describing it as "contrary to the purposes underlying the Fourth Amendment" (3) and "one of the most serious threats to privacy in the digital age." (4) In January of 2012, Justice Sotomayor wrote, "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age...." (5)

The Supreme Court's recent opinion in United States v. Jones (6) provides fresh grounds for reconsideration of the third-party doctrine as applied to papers and their digital equivalents. In Jones, the Court clarified the scope of the inquiry demanded by the Fourth Amendment. The majority repudiated the notion that Fourth Amendment protections "rise or fall" under the reasonable expectation of privacy formulation first articulated in the 1967 case of Katz v. United States. (7) Instead, the Court held that the Katz line of reasonable expectation cases supplemented, rather than supplanted, the exclusively property-based approach of early Fourth Amendment cases. (8) The Jones majority thus found that a search involving trespass would be unlawful, even if an individual had no reasonable expectation of privacy in the information. In reaching this holding, the Jones Court reaffirmed its duty to "'assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." (9) The Court emphasized that a Fourth Amendment analysis is incomplete without examination of early search and seizure precedent. (10)

Jones's emphasis on preserving the historic scope of Fourth Amendment protection stands in tension with the Court's practice of applying the third-party doctrine to papers and their digital equivalents. This Note explores the roots of this practice and highlights how this application represents a break from early Fourth Amendment precedent. This Note then presents a line of cases that suggests individuals do not necessarily surrender Fourth Amendment protection when they convey papers to third parties. This Note concludes with the argument that, pursuant to Jones, the Court must honor early Fourth Amendment precedents and provide protection for conveyed papers and their digital equivalents.

1. CONFLICTING PRINCIPLES: THE PROPERTY-BASED AND EXPECTATIONS-BASED LINES OF FOURTH AMENDMENT JURISPRUDENCE

   The Fourth Amendment of the United States Constitution reads, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." (11) The Drafters included this amendment in the Bill of Rights in response to British general warrants and the colonial writs of assistance that empowered revenue officers to search at will for smuggled goods. (12) In February 1761, James Otis, the Attorney General in the colony of Massachusetts, (13) described writs of assistance as "the worst instrument[s] of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book" because the writs placed "the liberty of every man in the hands of every petty officer." (14) The Fourth Amendment of the United States Constitution mirrors the language of the Massachusetts Declaration of Rights of 1765 and the same state's Constitution of 1780. (15)

   Following the enactment of the Bill of Rights, courts developed two divergent lines of Fourth Amendment jurisprudence. (16) The first--reflecting a property-based conception of Fourth Amendment rights--dominated the Court's understanding until the latter half of the twentieth century. (17) Cases in this line reflect the significance of property rights and invoke the language of trespass. (18) Chief Justice Taft's majority opinion in Olmstead v. United States (19) provides a vivid illustration. According to the Olmstead majority, the connection between the Fourth Amendment and property concepts was so strong that the law dictated a finding that no Fourth Amendment violation occurred "unless there has been an official search and seizure of [the defendant's] person, or ... a seizure of his papers or his tangible material effects, or an actual physical invasion of his house 'or curtilage' for the purpose of making a seizure." (20) The Olmstead majority thus held that a wiretap did not violate the Fourth Amendment because the insertions were made "in the streets near the houses" and involved no "trespass upon any property of the defendants." (21) In the subsequent case of Goldman v. United States, (22) the Court similarly determined that no search took place when federal agents attached a "detectophone" to the outer wall of the defendant's office. (23)

   This trespass-based conception of Fourth Amendment protection faded in 1967 when the Court seemingly abandoned the approach in favor of a framework based on the defendant's reasonable expectations of privacy. In Katz v. United States, the Court held that a Fourth Amendment violation took place when agents surreptitiously overheard and recorded the defendant's conversation, even though no trespass to property occurred. (24) In what appeared to be a rejection of the property framework, Justice Stewart explained the majority's belief that "the Fourth Amendment protects people, not places." (25) The Court held, "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." (26) Likewise, "what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." (27) Justice Harlan's concurrence provided the test used to explore this new, non-property-based privacy conception: "[T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable." (28)

2. REPLACED OR REFINED? DETERMINING THE IMPACT OF KATZ ON THE SCOPE OF FOURTH AMENDMENT PROTECTION

   In the years following Katz, courts struggled to comprehend the relationship between the expectations-based and property-based lines of Fourth Amendment precedent. A note in the July 1968 issue of the Texas Law Review posited that the Katz decision "swept aside [the] last remnant of Olmstead" and rejected the physical intrusion test in favor of a "different standard." (29) Even the Supreme Court's rhetoric suggested that Katz replaced, rather than supplemented, the property-based test. Writing for a five member majority in the 1978 case of Rakas v. Illinois, (30) then-Justice Rehnquist wrote, "the Court in Katz held that capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." (31) Similarly, in United States v. Karo, (32) the majority held: "The existence of a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated, however, for an actual trespass is neither necessary nor sufficient to establish a constitutional violation." (33) Finally, in a dissent from a 1987 denial of certiorari, Justice White wrote for three Justices:

   The primary object of the Fourth Amendment is to protect privacy, not property, and the question in this case, as the Court of Appeal recognized, is not whether Rooney had abandoned his interest in the property-law sense, but whether he retained a subjective expectation of privacy in his trash bag that society accepts as objectively reasonable. (34) In the 2012 case of United States v. Jones, Justice Scalia, writing for five members of the Court, rejected this understanding and explained that the two lines of precedent operate not in opposition but in tandem. Although Justice Scalia noted that the Katz line "deviated from that exclusively property-based approach," (35) he rejected the idea that the Katz reasonable expectations inquiry had replaced the trespass standard altogether. He wrote, "for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas ('persons, houses, papers, and effects') it enumerates. Katz did not repudiate that understanding." (36) Thus, in Jones, the majority held that an unconstitutional search took place when police collected data from a Global Positioning System (GPS) device surreptitiously placed on the defendant's vehicle--a trespass to a chattel--even though the device revealed information about movement on public streets, data for which an individual has no reasonable privacy expectation. (37)

3. ROOTS OF THE THIRD-PARTY DOCTRINE'S APPLICATION TO PRIVATE PAPERS

   In light of Justice Scalia's clarification of the relationship between the property-based and expectations-based...