Reasonable Expectation of Privacy

While I’m not a Fourth Amendment expert, that won’t stop me from saying something about Jones.  I think that Justice Sotomayor’s concurring opinion, which calls into question the rule that there is no reasonable expectation of privacy when information is disclosed to a third-party outside of a confidential relationship recognized by the common law (lawyer/client, doctor/patient, etc.), should start a conversation about abolishing this outdated tort concept.

It seems to me that trade secret law provides a better model.  The inquiry there is whether the owner of the information takes reasonable precautions to preserve its secrecy.  Disclosure to a third-party does not automatically end legal protection, and custom is relevant for defining whether the third-party disclosure constitutes a waiver.  Now adopting this standard would probably lead to more intrusion upon seclusion claims, but it is also more realistic in the social media age.  I doubt that I’m the first one to suggest this approach, but I don’t know.

UPDATE:  Some quick research shows that a Note in the Georgetown Law Journal did make this proposal with respect to the Fourth Amendment, though not for tort law.  See Andrew Riggs Dunlap, Fixing the Fourth Amendment With Trade Secret Law, 90 Geo. L. J. 2175 (2002).

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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5 Responses

  1. Orin Kerr says:

    Gerard, I disagree. First, it’s generally unwise to bring in standards from other areas of law that are trying to solve problems unrelated to the problems that the third party doctrine is trying to solve. The third party doctrine was developed in Fourth Amendment law for the particular problems of criminal investigations, and specifically the outsourcing problem. If the doctrine is to be limited or rejected, it should be limited or rejected in light of the problem it is trying to solve, not the unrelated problems of trade secret law or tort law. (Oh, and the third party doctrine still applies in cases of disclosure to a lawyer or doctor; government access is blocked by the privilege, not the Fourth Amendment.)

  2. Ken Rhodes says:

    Orin, I think I disagree with your disagreement. I don’t think the problems are unrelated. True, they are different problems, but I think the relationship is that there is an underlying commonality — expectation of non-disclosure — that is a “fundamental” in a wide spectrum of human activities.

    I’m not entirely comfortable with Gerard’s “custom is relevant,” because I think that leaves the door wide open for abuse by both agents and judiciary. What would have to be specified is which specific actions, which specific information, and which specific relationships accrue that expectation.

  3. Gerard Magliocca says:

    To be honest, I was thinking of this more in a tort context than a Fourth Amendment one.

  4. Orin Kerr says:

    Thanks, Ken and Gerard. Ken, I agree that expectations of non-disclosure are a common theme. But that’s a pretty abstract common theme, and the question is whether the specific solution to the problem that implicates that theme in one context should be applied to a different problem that implicates that theme in another context.

  5. David E says:

    Now the Department of Justice should reveal all to the people they have done this to, since they thought it was legal to do this all along! How many convictions will be overturned? How many people will find out life hasn’t been so private? Patriot Act, up yours.