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Restoring Reason to the Third Party Doctrine

By Lucas Issacharoff & Kyle Wirshba. Full text here.

This Article takes as its starting point the recent turmoil over the continued vitality of the Fourth Amendment’s third party doctrine. The doctrine has long held that the government’s examination of information in the hands of a third party—whether a bank, a telephone company, or simply a friend—cannot constitute a search under the Fourth Amendment. This bright-line rule has been cast into considerable doubt by two recent Supreme Court cases, United States v. Jones and Riley v. California, which evince the Court’s concern over continued application of analog doctrines in a world of ever-expanding digital information and surveillance capacity. This Article argues that attempts to address the puzzle of the third party doctrine have been overly focused on refining what does and does not constitute a search, an endeavor that is unlikely to produce a durable solution. Instead, this Article focuses on reevaluating where third party searches fit into the Fourth Amendment framework. In doing so we examine the interplay between the Fourth Amendment’s two clauses, and the areas where the Court has held that the Reasonableness Clause applies while the Warrant Clause does not. A focus on the warrant exceptions reveals that third party searches fit comfortably within this category. Accordingly, we argue that third party searches should be acknowledged as searches—and thus fall within the ambit of the Fourth Amendment—but be evaluated under the Reasonableness Clause rather than the stricter Warrant Clause. Finally, we turn to Terry v. Ohio for a model of how courts should structure this reasonableness inquiry.