Washington Lawyer - December 2017 - 28

One problem is that Americans are
voluntarily exposing information about
themselves on a daily basis, so that may
require us to rethink concepts like the
third-party doctrine and ask, 'What is
consent in the digital age?'
STEPHEN I. VLADECK
University of Texas School of Law

In the Katz case, the Federal Bureau of Investigation attached an electronic listening device to the outside of a phone booth. Gambler Charles Katz, convicted
of transmitting wagering information by telephone across state lines, argued that
the recordings should not have been used as evidence against him.
In agreeing with Katz, the Supreme Court overturned precedent and set up a
Fourth Amendment analysis that has been used ever since.
Under the Katz rule, law enforcement officials are considered to be conducting a search if they are invading an individual's reasonable expectation of
privacy. The test for privacy is two-pronged: Did the individual have an actual
expectation of privacy? Is that expectation one that society is prepared to
recognize as "reasonable?"
In the 50 years since the Supreme Court ruled in Katz, the technology landscape
has changed radically. Gone are worries about ensuring privacy in public pay
phones. In fact, very few public pay phones even exist in this country. Instead, the
battle over privacy centers on technology upon which our society increasingly
relies, such as cell phones, Global Positioning System (GPS) tracking devices, and
Internet service providers (ISPs). The overriding question is whether Katz and its
progeny can effectively address the privacy concerns arising from the digital age,
legal experts say.
"Everybody agrees that technology has exploded and fundamentally changed
our day-to-day lives," says Stephen I. Vladeck, a leading expert on national
security and constitutional law. "And everyone agrees it's fair to ask whether
the digital explosion requires us to reexamine our privacy doctrine. But nobody
agrees on the answer."
This term the Supreme Court could decide whether Katz, and any of its
progeny, is still good law. The Court is set to hear Carpenter v. United States,
a case involving a law enforcement investigation into a series of cell phone
store robberies.

Third-party doctrine began with Katz, but was more thoroughly developed in
Smith v. Maryland and later cases. Under the doctrine, the Fourth Amendment
doesn't protect information voluntarily given to third parties, such as telephone
companies. Courts have said that individuals who have given information to third
parties have, in fact, consented to having that information made public.
In the Smith case, for example, the petitioner, Michael Lee Smith, was convicted of
robbery. During its investigation, law enforcement requested that the telephone
company install a pen register at its central offices to record the numbers dialed
from Smith's home telephone. The information from the register then helped
police to obtain a warrant to search Smith's home. The trial court denied Smith's
motion to suppress all evidence obtained from the pen register.
In 1979 the Supreme Court found 5-3 that Smith didn't have a reasonable expectation of privacy in the outgoing phone numbers recorded by the pen register.
"When he used his phone, petitioner voluntarily conveyed numerical information
to the telephone company and 'exposed' that information to its equipment in the
ordinary course of business," wrote Justice Harry Blackmun for the majority. "In so
doing, petitioner assumed the risk that the company would reveal to police the
numbers he dialed."
After Smith, the Supreme Court found that individuals also don't have a reasonable expectation of privacy in bank records because they, too, are given voluntarily to third parties.
Lower courts continue to follow third-party doctrine in their analysis of particular
Fourth Amendment cases. But privacy experts question whether the doctrine
remains appropriate in an era when people send information to third parties consistently throughout the day without even thinking about it.
"One problem is that Americans are voluntarily exposing information about themselves on a daily basis, so that may require us to rethink concepts like the thirdparty doctrine and ask, 'What is consent in the digital age?'" says Vladeck, a
professor at the University of Texas School of Law.
David Gray, a privacy rights expert at the University of Maryland's Francis King
Carey School of Law, suggests that the time is right for the Court to simply
abandon the Katz reasonable expectation of privacy test and instead adopt a
common-sense definition of "search."
The crucial question then, says Gray, should be "whether the decision to engage
in a type of search can be left to the unfettered discretion of government agents
free of oversight without compromising the security of the people as a whole."
"The Fourth Amendment is not concerned about privacy. It's not in the
language from 1791," says Gray, who recently authored The Fourth Amendment

Timothy Carpenter, accused of helping to mastermind the robberies, is challenging his conviction. Carpenter argues that the Fourth Amendment required
law enforcement officials to show probable cause and get a warrant before
obtaining his cell phone records. The records tracking his location were introduced as evidence that Carpenter was near the stores when they were robbed.
"This is really a blockbuster Fourth Amendment case," says Nathan Freed Wessler,
a staff attorney with the American Civil Liberties Union's Speech, Privacy, and
Technology Project and co-counsel for Carpenter. "It provides the Supreme Court
with an opportunity to explain the reality of life in the digital age."

THIRD-PARTY DOCTRINE:
NEARING ITS END?
One of the biggest areas of dispute among privacy law experts is whether
a concept called "third-party doctrine" should continue to reign.
28 WASHINGTON LAWYER

* DECEMBER 2017

The Fourth Amendment is not
concerned about privacy. It's not in the
language from 1791. The real concern
is constraining the discretionary use of
executive power.
DAVID GRAY
University of Maryland
Francis King Carey School of Law

http://www.dcbar.org

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