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Privacy Should Not Require Secrecy: The Decline of the Third Party Doctrine?

Posted by William Bly | Sep 16, 2016 | 0 Comments

As our recent blog posts have made clear, the protections that the Fourth Amendment offers to American citizens has serious gaps in it, and perhaps the widest among these gaps is the third party doctrine. By allowing the government to obtain information or other physical materials that you have voluntarily given to a third party without conducting a “search” that implicates your Fourth Amendment rights, the third party doctrine opens up a treasure trove of information for law enforcement to freely access, if they want to learn more about you.

The Growth of the Third Party Doctrine

For nearly three decades, the courts in the United States have not only allowed this to happen, but have opened the door ever wider, granting police the ability to look through your trash, phone records, and internet history for evidence against you. Because you have given this information to someone else – like your garbage man, phone company, or internet service provider – courts have decided that you must not care if the police can have it, too.

However, there is finally some movement in the opposite direction.

Third Party Doctrine Finally Being Criticized

In today's digital age, when so many people put so much information on their Facebook page, and when you use your phone's GPS to get directions to a new restaurant, the amount of personal information that you truly keep private is shrinking beyond belief. And courts are finally starting to notice how bad it has become.

In a Supreme Court case from 2012 regarding the police use of a GPS device on a suspect's car, Justice Sotomayor voiced her displeasure with how wide the third party doctrine had become. Finally taking issue with how the Fourth Amendment was now treating “secrecy as a prerequisite for privacy,” she publically stated that the third party doctrine needed to be reconsidered in light of the digital age. She even went so far as to say that she would not consider information provided to third parties as being openly accessible to law enforcement, effectively telling everyone that she would not recognize the third party doctrine, should a case come before the Court.

Unfortunately, Justice Sotomayor's statements came in a case that did not hinge on the third party doctrine, and was not something that a majority of the Court adopted. Therefore, her words cannot directly be used to support a future ruling against it. However, the fact that such a prominent judge is questioning the worthiness of such an important piece of the criminal justice system shows that the third party doctrine is finally losing some of the authority that it's picked up over the years.

Maine Criminal Defense Attorney William T. Bly

When a Supreme Court Justice drops these kinds of hints about important issues in criminal procedure, defense attorneys like William T. Bly take notice. By being on the cutting edge of the developments in the world of criminal justice, criminal defense attorney William T. Bly can track current trends in the legal field, and use them to your advantage.

If you've been charged with a crime in the state of Maine, contact his law office online or by calling (207) 571-8146.

About the Author

William Bly

William T. Bly, Esq. is a graduate of Rutgers College where he majored in Political Science with a minor in U.S. History. Attorney Bly attended and graduated the University of Maine School of Law. During his time in law school, Attorney Bly focused on criminal defense.


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