Many people wrongly believe that the Fourth Amendment affords us a “right to privacy.” In fact, the Fourth Amendment provides us a right to be free of unreasonable government searches and seizures during instances in which we have a reasonable expectation of privacy. We have a “reasonable expectation of privacy” when we have a subjective expectation of privacy that society is willing to recognize as reasonable. The Third-Party Doctrine establishes that there is no reasonable expectation of privacy to information disclosed to third parties, even if the defendant had a subjective expectation that the third party would keep it private. Moreover, the law does not permit us to have an expectation of privacy when it comes to one person, but not another. The Third-Party Doctrine is black and white in that regard.
When We Assume the Risk
The rationale behind the Third-Party Doctrine is that society is unwilling to recognize as reasonable an expectation that information we voluntarily convey to third parties be kept private. In other words, we assume the risk that a third party is actually an undercover informant. For example, if a defendant has been arrested and is sitting in a holding cell before he goes before the judge, and he confides in his cellmate that he that is actually guilty of the crime for which he was arrested, he assumes the risk that his cellmate could be an undercover police informant. Importantly, the Third-Party Doctrine only refers to content-bearing information that, had someone not voluntarily conveyed it to a third party, he would retain his reasonable expectation of privacy over this information. This is different from non-content bearing information, such as metadata. We never have a reasonable expectation of privacy when it comes to non-content bearing information, though many critics believe this is unfair.
Difference Between Content-Bearing and Non-Content Bearing Information
Content-bearing information that falls under the Third-Party Doctrine includes emails, telephone conversations, and bank records. Non-content bearing information, over which we currently do not have a reasonable expectation of privacy, includes metadata (or “information about information”), GPS data, and telephone call information (such as the time and duration of phone calls). The GPS data is now protected by the 4th amendment under recent rulings. Police have to get a warrant before retrieving that data. Post offices and internet service providers are not considered third parties under the Third-Party Doctrine because they are not the intended recipients of the information. Thus, we retain our reasonable expectation of privacy as to content-bearing data, such as our emails, before it reaches its intended recipient.
What if I Have More Questions About My Right to Privacy?
If you have question about your privacy rights, call Glasgow & Olsson today. Our criminal law attorneys are experienced in all matters pertaining to Fourth Amendment, and can advise you on the best way to protect your privacy interests in your person, property, papers, and personal information under the constitution.