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San Diego Law Review

Library of Congress Authority File

http://id.loc.gov/authorities/names/n79122466.html

Document Type

Article

Abstract

Does the Constitution allow waiver of Fourth Amendment rights through passive choice? What about through the choice of others? Based on current Supreme Court precedent, the answer is frustratingly unclear. For example, a copious amount of information is constantly disclosed to phone companies. The Supreme Court has recognized that having a cell phone is an inescapable choice today and that disclosing one’s location information to the cell phone company is automatic in nature. Each fact is considered relevant to determining whether an individual has a reasonable expectation of privacy in the information disclosed to third parties—which then affects whether the government’s action is considered a search or not. Yet, considering these facts in that puzzling way confuses the suitability of the question, resulting in contradictory results without a cognizable explanation.

The Fourth Amendment was adopted in response to “reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era” to prohibit the government from rummaging through “persons, houses, papers, and effects” without either probable cause or the search at least being reasonable. Advancing technology and changing cultural expectations risk nullifying this bedrock constitutional protection, as disclosures to third-party companies become inescapable, automatic, or both—creating a loophole for the government to avoid what is required of it under the Fourth Amendment.

If a search of any protected category—persons, houses, papers, or effects—occurs, and the information or item was the defendant’s, the question must become whether the search was reasonable. This is why it is important—for both clarity and continued constitutional protections—to consider whether the exposure to a third party was inescapable or automatic, not as a factor in the Katz “search” analysis but rather when asking whether a warrant exception applies. The article proceeds in four parts. Part I discusses the confusion resulting from inconsistent outcomes in three key U.S. Supreme Court decisions that involved the third-party doctrine. Part II evaluates the development of the current third-party doctrine over time. Part III discusses what has changed since the Court developed this doctrine and proposes a way to move forward, through recognizing a meaningfully-voluntary exposure warrant exception. Part IV then shows the exception in practice through examples, focusing on how this proposed change in the third-party doctrine would affect the questions presented in United States v. Miller, Smith v. Maryland, and United States v. Carpenter, as well as what it would mean for other cases involving trash collection and running crime-scene DNA through online DNA databases, like 23andMe.

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