The Fourth Amendment aims to safeguard privacy and property by restricting the government’s authority to conduct searches and seizures. Typically, officials are required to secure a warrant from a judge before they can examine or take possession of property.

However, the U.S. Supreme Court has significantly weakened the Fourth Amendment. In 1976, the Court held bank records were not subject to the constitutional protection of privacy. This was because the records were voluntarily given to a third party, thus establishing the “third-party doctrine.” Since then, the Court has broadened the doctrine’s scope to include any information disclosed while obtaining goods and services from various sources.

Today, this doctrine extends to the phone numbers you dial, the websites you visit, and even your medical records. This means that government officials can access this information without obtaining a warrant from a judge.

What can state legislators do?

State legislators do not have to wait for the Supreme Court to address this exception. The Institute for Justice offers the model “Protection of Shared Physical and Digital Property from Warrantless Searches Act.” It requires state officials obtain a warrant before searching or seizing physical or digital property a person shares with a third party while acquiring goods or services.

The model safeguards a broad range of property the Supreme Court’s flawed “third-party doctrine” puts at risk. Moreover, the model includes reasonable exceptions to the warrant requirement, such as cases involving consent and emergencies that present immediate threats to life or public safety.

The model addresses the significant gap in Fourth Amendment protection created by the “third-party doctrine.” It achieves this while still allowing state law enforcement officers to maintain public safety.