Americans rightly think that whom they call, what websites they visit, or what they have in the bank is their own business. But according to the U.S. Supreme Court, they’d be wrong. That is because in the 1970s, the Court invented what’s known as the “third-party doctrine,” which essentially says that any information you share with others, even if done in confidence so they can provide you with goods and services, loses all constitutional protection.
How did this happen? It all started with famed labor organizer Jimmy Hoffa, who spilled the beans about some illegal activity to a confidant (and government informant) in his hotel room. When he was prosecuted, he complained that the Fourth Amendment protected him from the government’s stool pigeon. But the Supreme Court rejected his argument, making the unremarkable observation that there is no search when you voluntarily make an incriminating statement to someone who then relays it to the government.
But the “reasonable expectations of privacy” test led the Court to drastically extend that limited principle in a pair of cases involving bank and phone records. The Court pointed to Jimmy Hoffa’s case and its observation that whenever people share information, they run the risk that the person they share it with might then convey it to the government. But then the Court went farther by creating a categorical rule that a person loses all Fourth Amendment protection in any and all “information he voluntarily turns over to third parties.”26
This categorical rule has devastated our security and privacy, particularly since so much of living in the modern world means sharing our information with others. If we want to call someone, we have to give the phone company the number. If we want to look at a website, we have to send the URL to our Internet provider. And if we want somewhere to put our money, we have to share information with our bank. The third-party doctrine says that even if all these companies agree to keep our information safe and secure, government agents can demand access to it without seeing a judge or securing a warrant.
The third-party doctrine has gotten so bad that it even threatens the doctor-patient relationship. Our medical records contain incredibly private and sensitive information yet in at least 10 states, police and prosecutors can unilaterally demand patients’ private medical records using subpoenas that do not require a judge’s signature. And in some states like Texas, statutes let investigators demand that the doctor either immediately turn over the records or face charges herself.
The third-party doctrine is dangerous and short-sighted. It makes no sense to treat any and all information we share with others as unprotected. Every day we enter into agreements with people and businesses in which we give them our property and information so that they can, in turn, provide us with goods and services. Think about your auto mechanic, for instance. When you drop off your car to get repairs, that doesn’t mean the government can march into the garage and peek under the hood. So why should it be any different for our information?
The simple answer is that it shouldn’t. When I share my property, my information with someone who agrees to keep it secure, that is a decision that the Constitution should respect. And to respect that decision means requiring government officials to seek out and get a warrant before getting its hands on that information. That will leave the government free to prosecute the Jimmy Hoffas of the world for what they say to confidential informants while ensuring that we can live our lives free from fear of unwarranted government snooping.