4th Amendment Project

Protecting Shared Physical and Digital Property from Warrantless Searches Act

A State Solution to the Federal Erosion of Fourth Amendment Protections in Physical and Digital Property Shared with Third Parties

The Fourth Amendment is meant to protect the right of the people to be secure in their persons and property by limiting the government’s power to search and seize. Typically, officials must obtain a warrant from a judge before they can take and review your property.

But over the past 50 years, the U.S. Supreme Court has blown open a massive hole in our Fourth Amendment protections. Originally applied to incriminating statements made by mobsters, the “third party doctrine” quickly expanded to cover any and all information you share with others in the course of obtaining goods and services. Today, the third-party doctrine reaches the phone numbers you dial, the websites you visit, even your medical records, meaning that officials can demand all of these without going to a judge and explaining why a warrant should issue.

What can state legislators do?

State legislators should not sit idly by waiting for the U.S. Supreme Court to fix this hole in our search-and-seizure rights. The Institute for Justice offers model legislation— Protecting Shared Physical and Digital Property from Warrantless Searches Act. It requires that state officials obtain a warrant before searching or seizing any physical or digital property that a person shares with a third party as part of obtaining goods or services.

The Act protects a wide swath of physical and digital property the Supreme Court’s misguided “third-party doctrine” leaves vulnerable. At the same time, the Act incorporates traditional—and sensible—exceptions to the warrant requirement, like consent and emergencies that pose immediate threats to life or public safety.

The bill closes the massive hole in the Fourth Amendment caused by the “third-party doctrine” while giving state law enforcement officers the tools they need to enforce the law and ensure public safety.