A NEW THIRD-PARTY DOCTRINE: THE TELEPHONE METADATA PROGRAM AND CARPENTER V. UNITED STATES.

• Author: Takeuchi, Mary-Kathryn

INTRODUCTION

The third-party doctrine was long considered a well-established principle that was not going anywhere anytime soon. It traces back to early Fourth Amendment jurisprudence in 1967, when the Supreme Court issued its landmark decision in Katz v. United States. (1) There, the Court asserted that "[w] hat a person knowingly exposes to the public... is not a subject of Fourth Amendment protection." (2) The Court affirmed this assertion in United States v. Miller, holding that checks and other financial records voluntarily turned over to a bank were not subject of Fourth Amendment protection, (3) and again in Smith v. Maryland, holding that phone numbers dialed out were voluntarily conveyed to a phone company and therefore not entitled to Fourth Amendment protection. (4) What resulted was a bright-line rule that guided courts in deciding cases under the third-party doctrine: an individual has no reasonable expectation of privacy under the Fourth Amendment in information that is voluntarily conveyed to a third party. (5)

In 2018, the Supreme Court confronted and reconsidered the forty-year-old third-party doctrine in the newest Fourth Amendment landmark case, Carpenter v. United States. (6) The digital world--a world in which technology and mobile devices are extensions of our own bodies, tracking our every conversation, every move, every purchase, every internet search--was becoming one in which the bright-line rule of voluntary disclosure could no longer thrive. Would the Court allow these tiny 5.8-inch devices that captivate Americans' entire lives in sixty-four gigabits to reveal such personal information to the government without a warrant? Chief Justice Roberts, writing for the majority, recognized these concerns and made a substantial retreat from the traditional bright-line approach of the third-party doctrine. (7) What came from the Carpenter decision was a new balancing test that weighs the reduced or reasonable expectation of privacy against whether the information was truly voluntarily exposed to the third party. (8)

Roberts asserted that the Court's decision in Carpenter should have no bearing on national security law. (9) By making that simple assertion, however, he raised the red flag and called attention to the question of how the third-party doctrine applies to the collection of information relating to national security. Perhaps the most significant question is how the third-party doctrine applies to bulk metadata collection under the Foreign Intelligence Surveillance Act's telephone metadata program. Under the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, the government could collect and record any tangible thing, most significantly, bulk telephone metadata on millions of Americans without a warrant. (10) In an infamous 2013 leak to the press, the American public discovered that the government had collected and recorded bulk metadata on millions of wireless subscribers. (11) Congress attempted to remedy the situation by enacting new legislation. However, the impact of the new law remains unclear, with millions of datapoints still being collected and recorded, which has long been defended by the fact that individuals turn over revealing information to their wireless providers, thereby barring them from bringing any Fourth Amendment claim against the government. (12)

This Note will answer the question of whether bulk metadata collection is still defensible under the third-party doctrine. It ultimately concludes that Roberts incorrectly asserted that Carpenter will not impact the application of the third-party doctrine to collection techniques involving national security, and that the warrantless collection of bulk metadata under the Foreign Intelligence Surveillance Act is no longer defensible by the third-party doctrine. In Section LA, this Note discusses traditional Fourth Amendment jurisprudence in Katz v. United States and the establishment of the third-party doctrine as a bright-line rule in United States v. Miller and Smith v. Maryland. This Note also provides background on the Court's hint at a coming change in the third-party doctrine in United States v. Jones. (13) In Section I.B, this Note explains the Court's decision in Carpenter v. United States before laying out the new balancing test in Section I.C. In Part II, this Note describes the issue at hand by discussing the controversy surrounding bulk metadata collection under the Foreign Intelligence Surveillance Act's telephone metadata program, as well as the open question remaining of whether the government's collection under that program is defensible by the third-party doctrine. In Part III, this Note applies Carpenter's new balancing test to the telephone metadata program and determines that, because individuals have a reasonable expectation of privacy in the metadata collected by the government under the telephone metadata program, and that because there is no voluntary exposure, the privacy interests at stake clearly outweigh the mere fact that information has been disclosed to wireless carriers. As such, the Note concludes that the telephone metadata program constitutes Fourth Amendment activity because the third-party doctrine no longer protects the government from defending warrantless searches. Section III.D also briefly discusses the implications of the findings under the new balancing test and suggests how courts will further evaluate the constitutionality of bulk metadata collection.

1. BACKGROUND

   In order to understand the substantial retreat from the third-party doctrine that the Supreme Court made in Carpenter v. United States, this Note begins by reviewing the origins of Fourth Amendment jurisprudence. Section I.A provides a summary of Katz v. United States and then explains the establishment of the third-party doctrine in United States v. Miller and Smith v. Maryland, which was later questioned in Jones v. United States. This Part then proceeds to describe the Supreme Court's decision in Carpenter and the resulting emergence of a new balancing test.

   1. The History of the Fourth Amendment and the Third-Party Doctrine

      1. Katz v. United States: A Reasonable Expectation of Privacy

         The Fourth Amendment protects the principle that "a person has a... reasonable expectation of privacy." (14) Modern Fourth Amendment jurisprudence can be traced back to these words in the Supreme Court's decision in Katz, where it rejected the idea that something might be a "constitutionally protected area," and rather asserted that "the Fourth Amendment protects people, not places." (15) In that case, the government overheard Katz's conversation from outside of a public telephone booth and used the content of that conversation as evidence against him in a criminal proceeding. (16) The Court held that Katz had a reasonable expectation of privacy in his conversation, and that "[t]he [g]overnment's activities in electronically listening to and recording [Kate's] words violated the privacy upon which he justifiably relied while using the telephone booth." (17) As such, the Court held that the government's activities in Katz constituted a Fourth Amendment search and seizure. (18) However, the Court also determined that "[w] hat a person knowingly exposes to the public... is not a subject of Fourth Amendment protection." (19) This foreshadowed what would soon become known as the third-party doctrine.

      2. United States v. Miller and Smith v. Maryland: Establishing the Third-Party Doctrine

         Almost a decade after the Katz decision, in United States v. Miller, (20) Mitch Miller was convicted of operating an undocumented whiskey distillery in Kathleen, Georgia. (21) While investigating the case, the government obtained copies of checks and other financial records without a warrant. (22) Miller alleged that this constituted unlawful Fourth Amendment activity, but the Court determined that Miller had no protectable Fourth Amendment interest in the checks and financial records. (23) The Court relied on Katz in finding that there was "no legitimate 'expectation of privacy,'" as Miller had voluntarily conveyed the information to the banks and their employees--a third party. (24) The Court in Miller drew a bright-line rule for the third-party doctrine: when information is voluntarily conveyed to a third party, there is no legitimate expectation of privacy and, therefore, no Fourth Amendment interest in the information. Therefore, there is no Fourth Amendment activity, and the individual lacks standing. The Court's determination was a bright-line rule as it made its decision without inquiry into how voluntary the conveyance of information was, or if there still remained any legitimate, or reasonable, expectation of privacy in the information.

         The Court affirmed its reasoning in Miller and the bright-line rule of the third-party doctrine in Smith v. Maryland. (25) In that case, a robbery victim called the police, reporting that the man identifying himself as the robber had repeatedly made threatening phone calls to the victim following the robbery. (26) During one of the phone calls, the man told the victim to step outside. In doing so, the victim saw the man driving slowly past her home. (27) Using the information provided by the victim, the government was able to trace the license plate number on the car to Michael Smith. (28) The government, without a warrant, directed Smith's telephone company to install a pen register that would record the numbers dialed from his home. (29) The pen register revealed that Smith was calling the victim, and using this information, the government then secured a warrant that revealed evidence supporting a charge and conviction for robbery. (30) Smith argued that the installation and use of the pen register violated his Fourth Amendment rights. (31) The Court rejected Smith's claim. (32) The Court held that, under the third-party doctrine, Smith...