Third-Party Doctrine

Third-party doctrine is a pro-government view that disclosure by an individual of personal information to a third party constitutes his waiver of any privacy rights in that information. The government is then able to obtain that information directly from the third party without obtaining a warrant first. Put another way, third-party doctrine is a way for the government to circumvent the Fourth Amendment in order to obtain personal information.

The U.S. Supreme Court has never expressly mentioned "third-party doctrine," but many federal and state appellate courts have invoked it.

Administrative subpoenas[edit]

Administrative subpoenas are used by the government without a warrant more often than most people realize. NSA gathers its metadata based on third-party doctrine.^[1] Administrative subpoenas are not real search warrants under the Fourth Amendment.

History[edit]

The history of third-party doctrine can be traced back at least to United States v. Miller, where the U.S. Supreme Court held that financial documents subpoenaed from a bank are not protected by the Fourth Amendment as "private papers" of the defendant, but instead constitute "the business records of the banks." 425 U.S. 435, 440 (1975). The Right to Financial Privacy Act of 1978 protected the privacy of bank customers against this decision, but a line of court cases developed based on this decision which denied protection of the Fourth Amendment to the privacy interests of citizens who voluntarily provide information to "third parties" (i.e., outside companies).

A few years after Miller, the Court applied third-party doctrine to deny any Fourth Amendment rights with respect to the installation and use of a pen register by the government to secretly record the phone numbers called by an individual. The Court held that this monitoring "was not a 'search,' and no warrant was required. Smith v. Maryland, 442 U.S. 735, 746 (1979). As with Miller, Congress subsequently overturned this decision with a law to provide some privacy protections. But the precedent against the Fourth Amendment applying stands.

References[edit]

1. ↑ https://www.washingtonexaminer.com/the-progressive-roots-of-nsas-privacy-violations/article/2566725