Need an alternative to the third party doctrine? Look backwards, not forward. (Part I)


In light of the renewed discussion on the future of the third party doctrine on this blog and elsewhere (much of it attributable to Riley), I’d like to focus my next couple of posts on the oft-criticized rule, with the aim of exploring a few questions that will hopefully be interesting* to readers. For the purpose of these posts, I’m assuming readers are familiar with the third party doctrine and the arguments for and against it.

I’ll start with the following question: Let’s assume the Supreme Court decides to scale back the third party doctrine.  Where in the Court’s Fourth Amendment jurisprudence should the Justices look for an alternative approach?  I think this is an interesting and important question in light of the serious debate, both in academia and on the Supreme Court, about the third party doctrine’s effect on privacy in the information age.

One answer, which may represent the conventional wisdom, is that there simply is nothing in the Supreme Court’s existing precedent that supports a departure from the Court’s all or nothing approach to Fourth Amendment rights in Smith and Miller.  According to this answer, the Court’s only choice if it wishes to “reconsider” the third party doctrine is to create new, technology specific rules that address the problems of the day.  (I’ve argued elsewhere that existing Fourth Amendment doctrine doesn’t bind the Court to rigid applications of its existing rules in the face of new technologies.)

A closer look at the Court’s Fourth Amendment jurisprudence suggests another option, however. The Supreme Court has not applied the underlying rationale from its third party doctrine cases to all forms of government intrusion.  Indeed, for almost a century the Supreme Court has been willing to depart from the all or nothing approach in another Fourth Amendment context: government searches of dwellings and homes.  As I’ll discuss below, the Supreme Court has used various tools—including the implied license rule in last year’s Jardines, the standard of “common understandings,” and the scope of consent rules in co-habitant cases—to allow homeowners, cohabitants, tenants, hotel-guests, overnight guests, and the like maintain Fourth Amendment rights against the government even though they have given third parties access to the same space.

In other words, it is both common sense and black letter law that a person can provide third parties access to his home for a particular purpose without losing all Fourth Amendment rights against government intrusion. Letting the landlord or the maid into your home for a limited purpose doesn’t necessarily give the police a license to enter without a warrant—even if the police persuade the landlord or the maid to let them in. Yet the Court has abandoned that type of nuance in the context of informational privacy, holding that sharing information with a third party means forgoing all Fourth Amendment rights against government access to that information (a principle that has eloquently been described as the “secrecy paradigm”). As many have noted, this rule has had a corrosive effect on Fourth Amendment rights in a world where sensitive information is regularly shared with third parties as a matter of course.

Why has the Court applied such a nuanced approach to Fourth Amendment rights when it comes to real property and the home, but not when it comes to informational privacy?  And have changes in technology undermined some of the rationale justifying this divergence? These are questions I’ll explore further in Part II of this post; in the meantime I’d love to hear what readers think about them. I’ll spend the rest of this post providing some additional background on the Court’s approach to privacy in the context of real property searches.

More after the jump.

Some background on the nuanced rules governing searches of real property

Last year’s Florida v. Jardines is a good place to start. The Court in Jardines held that a police officer violated the Fourth Amendment when the officer walked up to Jardines’ front porch with a drug dog looking for evidence of a crime.  The Court’s argument hinged on the existence of accepted practices—or “implied licenses”—governing when and why a member of the public can walk onto a homeowner’s property. As Kevin Russel explained on scotusblog,

While the public, including the police, generally have license to approach a house’s front door (for example, to leave a flier or ask the occupant to answer a question), that license does not include an invitation to bring a dog onto the porch to search for drugs.  If a member of the public did that, Justice Scalia observed, it would “inspire most of us to – well, call the police.”

The idea that implied licenses should govern the proper scope of government intrusions on private property is not new.  The majority in Jardines explained that the scope of the “license” that authorizes entry for one purpose but not another can be “implied from the habits of the country.”  The quote is from the Supreme Court’s decision in McKee v. Gratz, written by Justice Holmes in 1922, which involved a dispute over a party’s alleged trespass on another party’s land to collect mussel shells.  Justice Holmes ruled that the “habits” and “common understanding” in the state would control the question of whether a trespass had occurred, notwithstanding existing common law rules.

The Court has applied this approach in other cases involving intrusions into the home. In Chapman v. United States (1961), the Court rejected the government’s argument that a landlord could let the police into a tenant’s house for the purpose of searching the house for illegal distillery equipment.  Even though the landlord had the common law authority to enter the property for some purposes—including to “view waste”—the purpose for the police entry “was [not to view waste but] to search for distilling equipment,” and the police needed a warrant to do that.  While the Court didn’t use the language of “implied license,” the underlying principle is the same.

The language of “common understanding” also appears in the Court’s cohabitant cases, where the Court has crafted increasingly complex rules determining when the police can search a house occupied by more than one party.  Even someone with uninhibited and equal access to your property, such as a spouse, cannot obviate your right to refuse warrantless police entry into the property (but apparently only as long as you are physically present).  Indeed, the Supreme Court has even held that houseguests have legitimate expectations of privacy in their temporary quarters in someone else’s house.

Similarly nuanced rules govern searches of hotel rooms.  In Stoner v. California, a hotel clerk allowed the police entry into a suspect’s hotel room after being told the suspect was a dangerous fugitive.  The police did not have a warrant, but argued that the search of the room was authorized by the clerk’s consent since the clerk’s access to the room was valid under state law.

The Supreme Court held the search unconstitutional:

[W]hen a person engages a hotel room, he undoubtedly gives “implied or express permission” to “such persons as maids, janitors or repairmen” to enter his room “in the performance of their duties.” But the conduct of the night clerk and the police in the present case was of an entirely different order …

No less than a tenant of a house, or the occupant of a room in a boarding house, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures.  That protection would disappear if it were left to depend upon the unfettered discretion of an employee of the hotel. [Internal citations removed].

The Supreme Court and lower courts have expanded on these rules, both in the context of hotel searches and searches of the home and its surrounding area.  In many cases the line between these “property” rules and the Court’s “privacy” analysis (or the second step of Justice Harlan’s reasonable expectation of privacy test) is less than clear.

To sum up, the courts have used various tools—including implied licenses, common understandings, scope of consent rules, and plain old reasonableness—to allow homeowners, cohabitants, tenants, hotel-guests, overnight guests, and the like maintain Fourth Amendment rights against the government even though they have given third parties access to the same space.

Could “implied licenses” and “common understandings” governing searches of real property inspire similarly nuanced rules in the context of informational privacy?

It seems to me the Court’s jurisprudence on home and real property searches could be a source of inspiration (at the very least) as Justices look for new ways to treat privacy rights with the nuance and complexity they deserve in the information age.  It’s well established that the reasonableness of a police officer’s intrusion into a home — say, by asking a hotel clerk or a landlord for access — depends on nuanced practices governing acceptable conduct of houseguests, hotels, landlords, and cohabitants.  Why shouldn’t the reasonableness of a police officer’s request for your emails, or Facebook messages, or Dropbox files, be governed by similarly nuanced practices governing the use of third party services in the information age?

To be sure, there are some good reasons the analogy might not be taken too far: ranging from the privileged status provided to the home, to the fact (troubling to the originalists among the Justices) that there was no such thing as a “common understanding” governing the use of Facebook in the 1780s.  There may also be legitimate objections to blurring the lines between the Supreme Court’s “privacy” and “property” jurisprudence under the Fourth Amendment. (See Part V of this essay by Prof. Lessig, and associated footnotes, for a good discussion of the risks of using property language in the privacy setting).

These are subjects I’d like to consider further in my next post. As a sneak preview, though, I want to share a paragraph from Justice Kagan’s concurrence (joined by Justice Sotomayor) in Jardines, which I find telling:

The Court today treats this case under a property rubric; I write separately to note that I could just as happily have decided it by looking to Jardines’ privacy interests. A decision along those lines would have looked . . . well, much like this one. It would have talked about “ ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Ante, at 4 (quoting Silverman v. United States, 365 U. S. 505, 511 (1961)). It would have insisted on maintaining the “practical value” of that right by preventing police officers from standing in an adjacent space and “trawl[ing] for evidence with impunity.” Ante, at 4. It would have explained that “‘privacy expectations are most heightened’” in the home and the surrounding area. Ante, at 4–5 (quoting California v. Ciraolo, 476 U. S. 207, 213 (1986)). And it would have determined that police officers invade those shared expectations when they use trained canine assistants to reveal within the confines of a home what they could not otherwise have found there. See ante, at 6–7, and nn. 2–3.

Next post: is privacy a bundle of sticks?  Why the Court’s Fourth Amendment property jurisprudence may — or may not — be a valuable source of inspiration for its evolving jurisprudence on privacy.

[*As always, the arguments in these posts reflect my views and not necessarily those of my employer or anyone else. That’s not to say the arguments themselves are necessarily novel — e.g., there’s a long running debate about the value of analogies between privacy and property rights.]

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2 Responses

  1. Brett Bellmore says:

    “Why has the Court applied such a nuanced approach to Fourth Amendment rights when it comes to real property and the home, but not when it comes to informational privacy? ”

    Because only wealthy, influential people have domestic servants, and the wealthy spend a lot more time in hotels, too?

  2. Bob Gellman says:

    I’m not sure how far this analysis will get us with respect to the third party doctrine. My house (hotel room, etc.) is mine, with a few not-difficult complications for landlords and maids and the like. But my bank account is something that represents an activity that involves both me and my bank (and others). Other third party records — think medical records — are the same. It’s not my medical record. My doctor has a direct interest in the record as well. We have a shared interest. My ISP may have less of an interest in my email than my doctor does in my medical record. Amazon? Ebay? Credit card companies? We can look at each third party record keepers and play slice the baloney if we choose, but for many records, there are other interests besides just mine. I’m not sure that it will be easy or simple to trump the third party doctrine with analogies to real property. But I will wait and see what Babak comes up with.