Con Law Center Articles and Publications

Document Type

Article

Publication Date

2019

Abstract

For over 40 years, the Supreme Court has permitted government investigators to warrantlessly collect information that citizens disclose to third-party service providers. That third-party doctrine is under significant strain in the modern, networked world. Yet scholarly responses typically fall into unhelpfully extreme camps, either championing an absolute version of the doctrine or calling for its abolition. In Carpenter v. United States, the Court suggested a middle road, holding that some categories of data—such as digital location information collected from cell phones—do not neatly fall into the third-party doctrine’s dichotomy between unprotected, disclosed information and protected, undisclosed information. But the majority elucidated little rationale upon which to draw such nuanced distinctions.

This Article provides the missing rationale for such categorization: informational sensitivity. Disclosure to a third party matters but is not a trump card. Sensitivity matters too. I thus propose a two-step test to determine if the government must obtain a warrant before collecting information from a third party. First, the Court should analyze the information’s sensitivity, placing it on a sensitivity continuum rather than a disclosure dichotomy. The Court can look to related jurisprudence, and the inherent meaning such information conveys, to determine placement on that continuum. Second, if the information is sensitive, the Court should decide whether the government has collected enough of it to create an informational mosaic of the citizen. If so, that collection is a search.

The Court has long held that some data, like medical records or phone conversations, are too sensitive to be warrantlessly collected from third parties. Intermediately sensitive data, like the financial information in United States v. Miller and the cell site location information in Carpenter, might be warrantlessly collected in small amounts, but is too sensitive for warrantless collection in bulk. The Court should adjust the third-party doctrine to account for such sensitive information and craft provisional rules to protect it. Doing so will enhance both the public’s security and its regard for the Court.

Publication Title

Georgia Law Review

Volume

53

First Page

1039

Last Page

1092

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