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High Court may be ready to reconsider privacy doctrine

January 26, 2012

By Robert Iafolla

Los Angeles and San Francisco Daily Journals

WASHINGTON - The U.S. Supreme Court's pro-privacy decision this week in a case involving GPS tracking signaled that a majority of justices are ready to rethink the legal architecture making digital paper trails of American lives open to government eyes.

Most notably, Justice Sonia Sotomayor explicitly called out the case law saying people have no reasonable expectation of privacy - and thus no constitutional safeguards - for information willingly disclosed to third parties, suggesting that doctrine is ripe for reform.

"I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every website they had visited in the last week, or month, or year," Sotomayor wrote. "I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."

'I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every website they had visited in the last week, or month, or year.' - Justice Sonia Sotomayor

Legal experts said the court will be hard pressed to avoid taking up the third-party doctrine, due to the changing social norms about privacy, proliferation of record-generating technology, obsolescence of statutory privacy protections and emerging splits in federal appeals courts on the issue.

Sotomayor's comments came in her concurring opinion in Tuesday's unanimous ruling that held tracking a suspect with a GPS device attached to his vehicle constitutes a search under the Fourth Amendment. Sotomayor joined the court's five-justice majority, which decided the case based on the common-law tort of trespass because officers attached the tracer to the suspect's Jeep. U.S. v. Jones, 10-1259.

But that trespass-based holding - contingent on physical intrusion of private property - has little bearing on modern, cutting-edge privacy issues. Americans turn over reams of data to private companies, from their physical location tracked by cell phones to the manifold personal information recorded by social networking sites, online search engines, email servers and data storage in the Internet cloud.

A look at Google Inc.'s new privacy policy highlights the vast troves of information that's automatically captured online. The Internet giant announced this week that it combines and accesses each user's data across its dozens of applications, like Gmail and YouTube, as well as its search engine and an array of platforms.

While the majority opinion doesn't address 21st-century, technology-driven privacy concerns, Justice Samuel A. Alito Jr. penned a concurring opinion in the GPS case that does. Joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan, Alito analyzed the case according to the modern privacy test outlined in a landmark 1967 ruling, which turns on whether a person has a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347. The concurrence proposes that new technology may require a recalibration of what's considered reasonable.

Alito's concurrence, however, is mild in comparison with Sotomayor's direct criticism of the doctrine that people have no constitutional protections for information volunteered to third parties. She faulted the court's Fourth Amendment jurisprudence for treating "secrecy as a prerequisite for privacy," such that any voluntary disclosure eliminates constitutional protections.

Her opinion "was met with voluble excitement about somebody finally addressing this at the court," said Indiana University School of Law professor Fred H. Cate.

The court has largely been silent on the issue for the past 30 years, even as it regularly churns out Fourth Amendment decisions, Cate said. But the doctrine has been a hot-button issue in academia, with dozens of law review articles recommending a variety of changes, he said.

The court first detailed the third-party doctrine in a 36-year-old decision allowing law enforcement access to bank records, then affirmed it three years later in a case involving telephone records. U.S. v. Miller, 425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735 (1979).

But in the intervening decades, the court has avoided the issue. Its reluctance is highlighted by a handful of privacy cases in which dissenting justices have argued the third-party doctrine should have applied, like the decision blocking a hospital drug-screening program that passed results on to local police. Ferguson v. Charleston, 532 U.S. 67 (2001).

"Until today, we have never held - or even suggested - that material which a person voluntarily entrusts to someone else cannot be given by that person to the police, and used for whatever evidence it may contain," Justice Antonin Scalia wrote in dissent in Ferguson. "Without so much as discussing the point, the court today opens a hole in our Fourth Amendment jurisprudence, the size and shape of which is entirely indeterminate."

Legal experts critical of the third-party doctrine say its problems are exacerbated by the statutory framework for the privacy of electronic data, like the Electronic Communications Privacy Act of 1986, growing hopelessly outdated in light of new technology.

Lower courts have applied the doctrine in a number of cases dealing with a variety of personal information in the hands of third parties. New York University School of Law professor Erin E. Murphy said the leading case weakening the doctrine is from the 6th U.S. Circuit Court of Appeals, which held that a warrant is necessary to obtain the content of emails stored by Internet service providers. U.S. v. Warshak, 631 F.3d 266 (2010).

But rulings have varied by circuit and the type of information sought. For instance, the 9th U.S. Circuit Court of Appeals has held that there's no reasonable expectation of privacy for IP addresses of websites visited. U.S. v. Forrester, 512 F.3d 500 (2008).

"There are fissures in the third-party doctrine," said Stephen E. Henderson, a University of Oklahoma College of Law professor. "I absolutely think it's inevitable that the court will have to confront it."