constitutional law; criminal law; technology and law
The third-party doctrine enables law enforcement officers to obtain personal information shared with third parties without a warrant. In an era of highly accessible technology, individuals’ location information is consistently being transmitted to third parties. Due to the third-party doctrine, this shared information has been available to law enforcement, without the individual knowing or having an opportunity to challenge this availability. Law enforcement has utilized this doctrine to obtain comprehensive information regarding individuals’ whereabouts over long periods of time.
The U.S. Supreme Court recently limited the reach of the third-party doctrine regarding location data held by cellphone providers. However, this limitation lacks clear guidelines for application by lower courts and has since created significant divergence in application. This lack of clarity has a deeply negative impact on individual privacy rights, as it is difficult to predict how lower courts may approach novel types of technology.
This Note proposes creating a bright-line rule under which courts define property interests by determining who has control over location data, rather than who is currently in possession of it. Because an individual user controls the creation of the information, the third-party doctrine is inapplicable. This solution provides much-needed clarity to the current doctrine, creating a more predictable approach that will better protect individual rights and returning to the original meaning of the Fourth Amendment.
Confronting Carpenter: Rethinking the Third-Party Doctrine and Location Information,
92 Fordham L. Rev. 183
Available at: https://ir.lawnet.fordham.edu/flr/vol92/iss1/5