Securing informationships: recognizing a right to privity in Fourth Amendment jurisprudence.

• Author: DeFilippis, Andrew J.

NOTE CONTENTS INTRODUCTION I. THE PITFALLS OF PRIVACY A. The Secrecy Paradigm B. Privity and Informationships II. A FLAWED THIRD-PARTY DOCTRINE A. Searches for Information B. Evaluating the Current Framework III. A PROPOSED FRAMEWORK A. A New Test B. Categories of Information 1. Information Disclosed by Necessity 2. Information Disclosed After Solicitation 3. Information Created by Aggregation C. Practical Effects 2. Enhanced Protection 2. Outside the Fourth Amendment CONCLUSION INTRODUCTION

In a scene from Steven Spielberg's movie Minority Report, the main character walks into a clothing store and is greeted immediately by a pleasant voice. "Hello, Mr. Yakamoto! Welcome back to the Gap. How'd those assorted tank tops work out for you?" (1) Two things are striking about the scene. First, the pleasant voice comes not from a store clerk, but from a digital figure reciting information from the recesses of a vast computer database. Second, Yakamoto is not the name of the main character. Rather, in a gruesome twist, Mr. Yakamoto's eyes have been surgically removed and transplanted into the protagonist, who seeks to evade recognition of the eye-scanners that constantly record his identity. In Spielberg's imagined society, a seamless web of private-and public-sector databases aids the Department of Pre-Crime as it attempts to detect and prevent every illegal act.

Digital manifestations of identity, information, and surveillance--both onscreen and off--are rendering privacy a simplistic and incomplete lens through which to view problems of information control. The extent to which individuals may control the flow of data and information about themselves depends on relational norms governing the disclosure and use of that information. Yet privacy analysis as it has commonly been applied undercuts these relational components. The term privacy is little more than a convenient catch-all that courts and civil liberties advocates wave with frighteningly little precision. (2) To say that information should be "kept private" is to say very little. (3) On the one hand, one can interpret such a statement to be synonymous with an expectation of total secrecy. (4) On the other hand, one can construe it as conferring a more limited set of restrictions on the collection, use, and subsequent disclosure of information. (5) The word itself is meaningless unless we ask "from whom" and "for whom" the information is being held.

This Note argues for recognition of a right to privity as a freedom implied by the Fourth Amendment's prohibition against unreasonable searches and seizures. In particular, it argues against the prevailing third-party doctrine, which holds that as long as information has been disclosed to a third party, individuals retain no constitutional privacy interest in it. (6) Courts should abandon this paradigm in favor of a framework that affirms the right of individuals to make limited disclosure of their personal information (their "papers," in the words of the Fourth Amendment) without presumptively surrendering the protection of the Constitution's warrant requirement.

The proposed right to privity is grounded in the observation that we are moving toward a world of what I call "informationships," in which we frequently rely on others to act as custodians of our personal data, records, and communications. In such a world, any meaningful interpretation of the Fourth Amendment's guarantee against unreasonable searches and seizures must protect certain information that has been disclosed by its originator. Privity is ideally suited to describe the rights of individuals in this context, because it embodies notions of both confidential disclosure (in its common usage) and standing (in its usage in the law of contracts). Accordingly, this Note speaks of the "right to privity" in both senses. It conceives of the term first as a right of confidential disclosure protecting personal information held "in privity," and second, as a right of Fourth Amendment standing protecting a person's "privity to" an informationship as the basis for a valid constitutional claim.

As a whole, this Note challenges the literature's almost universal focus on privacy as the appropriate lexical/conceptual lens through which to analyze Fourth Amendment jurisprudence. It argues that privacy terminology undermines the protection of disclosed personal information in two major ways. First, privacy terminology limits information control by encouraging courts to conceive of informational transactions in dichotomous terms, as either private or public. This binary schema ignores the myriad ways in which sustaining constitutional values in an information technology age will require maintaining a vibrant category of nonpublic information that is neither fully secret nor entirely exposed.

Second, the privacy paradigm undermines constitutional text and values by overemphasizing the negative liberty aspects of information control while giving short shrift to its positive liberty components. Privacy terminology encourages us to conceive of information control as essentially a right to remain silent with respect to one's own personal information. Such terminology naturally draws our attention to that which is hidden, secret, and presumptively salacious. Yet this exclusive construction misses the corollary affirmative freedom implied by information control--to freely express one's self and communicate information. (7)

This Note does not present privity as a wholesale replacement of privacy within the realm of Fourth Amendment searches. Rather, I intend for privity analysis to replace privacy analysis in cases involving information held outside the custody of its originator. In such cases, privity provides a more precise way of describing the potential harms that result from the government's seizure of personal data. Unlike privacy, privity is a highly intersubjective concept that would require judges to ask not only "whether the information has been exposed," but also "to whom" and "to what end." Put simply, privity describes a particular type of privacy interest that is affected when the government compels individuals to turn over others' confidential information or communications.

From the more textured analysis that emerges from the concept of privity, we can begin to build a suitable constitutional framework for information control in the twenty-first century. Part I lays out the theoretical need for a more intersubjective framework for analyzing information control. Part II traces the existing judicial doctrines and demonstrates how, despite the early promise of a privity-friendly jurisprudence, privacy concepts and terminology have hindered judicial analysis. Part III proposes and applies a new doctrinal framework with which we can analyze information control as it relates to the Fourth Amendment.

1. THE PITFALLS OF PRIVACY

   In this Part, I outline the shortcomings of the existing privacy framework. First, I build upon Daniel Solove's critique of the so-called secrecy paradigm, a model that conceives of information as either wholly private or public. I argue that this model is inadequate to address the realities presented by informationships. I then describe my proposed concept of privity in greater detail before assessing and evaluating current Fourth Amendment doctrine.

   1. The Secrecy Paradigm

   The Fourth Amendment, which establishes a right to be free from "unreasonable searches and seizures," (8) was crafted at a time when both the physical and metaphysical boundaries between public and private space were far easier to identify. A purely literal reading of the Amendment's enumeration of "houses, papers, and effects" (9) could provide sufficient protection against government abuse in a world where such terms plausibly applied only to material things. Judges of the eighteenth and nineteenth centuries encountered few of the definitional challenges faced by judges today, who must classify amorphous items like e-mails, genetic profiles, biometrics, phone conversations, locational data, and computer databases into categories created over two hundred years ago. Invasive searches conducted by the English crown, authorized by general warrants, prompted the inclusion of the Fourth Amendment within the Bill of Rights as a means for limiting abuse of law enforcement powers. (10) Yet the scope of warrants in the colonial era generally covered only the contents of a person's home or office. An equivalent warrant today likely would include vast quantities of digital information and records held outside the home by trustees of personal information, such as Internet Service Providers (ISPs), insurance companies, banks, merchants, phone companies, and private data brokers.

   Thus, the technologically networked environment is introducing new interdependencies that arise from the limited disclosure of information. As many scholars have pointed out, we live in an age of databasing. (11) Whether in the context of our purchasing habits, financial transactions, sexual tastes, reading choices, web browsing, genetic makeup, medical information, or political affiliations, we constantly disclose information about ourselves and entrust it to third parties. (12) Much of the information we disclose out of necessity is sensitive enough that we would prefer not to reveal it to others. Consequently, the holders of our information have increasing potential to wield significant power over us. We live in a world where "embarrassing material follows a victim for life." (13)

   The privacy implications of this transformation would be far more benign if such changes were merely the product of individual human choice. If it were truly the case that individuals' preferences placed less emphasis on the ability to guard certain facts and information about themselves, then the loss of privacy might produce a welfare-maximizing result. Much of the distribution and recording of our information...