Legal scholar and technology expert Orin S. Kerr ’97 spoke on an important and long-standing Fourth Amendment issue: search and seizure protection in the age of the Internet. Kerr is currently a Professor at George Washington University School of Law. The Harvard Federalist Society sponsored the event.
Kerr focused his discussion on the “third party doctrine,” the theory that a subject gives up his Fourth Amendment rights with respect to information revealed or disclosed to a third party. In the seminal case of U.S. v. Miller, the Supreme Court specified that Fourth Amendment protection did not apply to disclosed information, “even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”
“The doctrine is just despised by Fourth Amendment scholars,” said Kerr, who commented that the doctrine “is one of those things you say is wrong” to achieve sufficient “street-cred” in the world of legal academia. In Kerr’s forthcoming Michigan Law Review article on the subject, he describes the doctrine as “the Lochner of search and seizure law.”
Kerr proceeded to discuss how the third party doctrine is critical to how criminal law and criminal procedure apply online.He explained how technology has “allow[ed] individuals to enshroud their conduct inside the home,” and, therefore, helped to bestow the strictest Fourth Amendment protection to that conduct.”There is a substitution effect,” argues Kerr, “the recipient [of information] essentially comes to you.” For example, instead of hand-delivering a package, one can use FedEx as a third party substitute for this conduct. Similarly, technology has facilitated this substitution, allowing an individual to transmit information to a third party without having to leave the home.
Kerr argues that the third party doctrine, when applied in the context of a network, “allows for an overall balance in Fourth Amendment rules.” Without the doctrine, “there is no open [or public] part anymore, [and] that balance is lost.” The doctrine works to restore Fourth Amendment protections to those in place before such substituting technology, keeping what formerly was open and public outside of search and seizure protection.
To illustrate this concept, Kerr discussed the “pen-register” case of Smith v. Maryland, where the Supreme Court equated a telephone number to going into the public sphere. Specifically, the Court found, “the switching equipment…is merely the modern counterpart of the operator,” and is therefore subject to the third party doctrine as non-content information.
The goal of the doctrine is to examine the world as it would be without the network used to transmit the information in question. Kerr defended Smith, stating, “instead of [leaving his home], he let his fingers do the walking.”
The phone number was functionally equivalent to the communications on the outside of an envelope, which is commonly accepted to lack protection as non-content or “envelope” information. Despite this application, there is “a different rule for the contents of communications,” according to Kerr. While the outside of an envelope receives no protection, the content does. Likewise, inside information on a network is protected just as it would have been in pre-network times.
Opponents of the third party doctrine argue that this balance ignores the increased capacity of the government to assemble non-content information. Kerr countered this argument by stating that information available on the Internet is not as private or as easy to assemble as these opponents suggest. While telephone records can give government officials a location, time, duration, and potentially the names of the individuals on both ends of the conversation, internet data is “a string of IP addresses.” The result of this distinction is that “wrongdoers [can more easily] hide information in that sea of data.”
Moreover, Kerr argued that statutes can sufficiently protect against the key public concern in this area: avoiding bad faith investigations. Indeed, Kerr postulated, “The better answer is to regulate the companies collecting the information.”Others argue that there is a key difference in what constitutes a “reasonable expectation” which the third party doctrine fails to address, such as the privacy expected when an individual travels to the Hark to pick up a copy of the Record as opposed to reading the Record online.
Kerr responded by stating flatly, “experience leads expectations.” While “the software is designed to make it seem private,” Kerr gave the example of location data transmitted by cell phones to telecom companies: while this data has existed for some time, only recently has the expectation of reduced privacy caught up to the cell phone tracking technology.
Technology has even muddied the distinction between content and non-content. While telephone numbers were found to be non-content, web site addresses are more complicated. Domain names have been found to be non-content and therefore not protected, while search terms used in search engine web sites are considered protected content. The status of web addresses after the domain name (relating to specific articles accessed is still up in the air.
Kerr argued that the answer to this issue is not a towering level of Fourth Amendment protection. “It won’t work to have an Internet that all receives the highest level of protection,” concluding that such stringent protection would be unprecedented for any network.
While Kerr predicted continued resistance to the doctrine, “some begrudging respect would be a good start” for the work it plays in restoring the public-private balance to Fourth Amendment jurisprudence in this new age of rapidly expanding technology.