Third Party Searches

by Sherry F. Colb

In my Verdict column this week, I discuss the case of City of Los Angeles v. Patel, on which the U.S. Supreme Court recently granted certiorari.  The case raises several questions about a Los Angeles law that authorizes police to demand access to hotel guest records without any basis in individualized suspicion, a warrant, or any sort of neutral pre-search review of the decision to target a particular hotel.  The people bringing the case are hotel operators who argue that the statute violates their privacy interests in their guest records.  

In my column, I discuss one of the questions that is not raised in this case, namely, whether the guests who stay at hotels subject to the Los Angeles law could complain about their Fourth Amendment rights being violated by the law.  The reason the question does not arise in this case is that, under existing Supreme Court precedents, the answer to this question is plainly "no."

It may surprise some readers to learn that the Supreme Court has said unequivocally, in Smith v. Maryland and United States v. Miller, that if an individual voluntarily hands over data to a third party (the telephone company in Smith and a bank in Miller), then the government may demand that data from the third party without implicating or infringing the Fourth Amendment rights of the individual who handed over the data.  For this reason, it has to be the hotels that object to having to hand over private guest information to the Los Angeles Police Department on demand, pursuant to the challenged statute, rather than the guests who might feel a greater sense of privacy invasion than the hotels at which they are staying.

In my column, I note that Justice Sotomayor has expressed (in her concurring opinion in United States v. Jones) the view that this doctrine divesting an individual of Fourth Amendment rights whenever she hands data over to a third party (which would, presumably, include an internet service provider who has access to her email) is ripe for revisiting.  In this post, I want to suggest a linkage between this third-party doctrine and a different feature of Fourth Amendment law, what I have called the "pretend friend" doctrine.

The "pretend friend" doctrine, found in cases that include On Lee v. United States, Lopez v. United States, Hoffa v. United States, and United States v. White, holds that individuals lack any reasonable expectation of privacy in their friends.  This means, under the cases, that if the government decides to hire an undercover officer to pretend to be your friend, and you divulge confidences to that friend and expose your private spaces to the friend, then you have not been subject to a "search" (understood as an invasion of a reasonable expectation of privacy) by the government.  The reason is that you made the choice to trust this person (who turned out to be working for the government) and therefore, even though the person was deceiving you, she or he was able to gather only as much information as you were prepared to share with her or him.

I have long regarded this reasoning as profoundly flawed, as I discussed in an article in the Stanford Law Review quite a few years ago.  I explained that we should consider the use of an undercover agent to be a search, because the government is deliberately preying on misplaced trust by a person who, in the absence of probable cause or other grounds for suspecting wrongdoing, presumably is innocent and should be left alone by the government rather than having his or her private spaces and thoughts exposed.

In the case of both the third party doctrine and the "pretend friend" doctrine, the Supreme Court treats as a "voluntary" disclosure by an individual the individual's decision to share in a setting in which the sharer either has little choice and/or may justly believe that the sharing "goes no further." That is, it is questionable to characterize as "voluntary" the choice to share information that one really has no option of not sharing or that one believes oneself to be sharing with a close friend in confidence, a belief nurtured by a government agent.  Such characterization, moreover, may ultimately lead to something like a police state in which people stop trusting others, since anyone may be a government spy.  In this circumstance, it may be accurate to say that no one "reasonably expects" privacy in friends and associates, but from a normative point of view, this would be a very unfortunate state of affairs.

Imagine the world in which people "get" the fact that if they give a hotel or ISP or telephone company or other third party information, then that information might be shared with others (whether government officials or interested other third parties). And imagine further that people "get" that any one of their close friends or associates may have been recruited by the government to spy.  Once people "get" this new reality, the result will be a paranoid population that simply cannot relax and trust.  In fact, it is arguably already naïve to nurture a sense of trust in this situation, albeit a naïveté that may be an essential component of mental health.  It seems perhaps enough to say about these two doctrines that in combination, they may require the population to choose between a state of mental illness, on the one hand, and a state of naïve, foolish, and misplaced trust, on the other.  Perhaps it is time for the Court to reconsider both of these misguided doctrines.