Wednesday, November 12, 2014

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 StatesLopez 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.

10 comments:

el roam said...

Thanks for a very interesting post . The whole issue is one of " one scroll can't have it all …." Very complicated , but just to notice that :

Once, one relies upon free will and voluntary choice, in defying those doctrines mentioned, then, it should be considered that the third doctrine has to do with privacy and forth amendment: the " naked eye " doctrine, should also be regarded as non valid and should be disqualified.

Since, the lay or basis of these doctrine , consist on the idea, that by roaming is public zone, a person, voluntarily apparently, discloses private details on himself, and on the other hand, can be caught any way by the " naked eye ".

So the same problem emerges, the fact that one is going and roaming outside, in public space, doesn't indicate in no way, that he is willing voluntarily to disclose nothing, or to expose himself to nothing (whether naked or not), but:

That he needs to: work, make his arrangements, hanging out, or whatever……

Thanks …..

Joseph Simmons said...

I really liked the Florida Supreme Court's decision last month in Tracey v. Florida.

The court concluded that access to real time cell site location information requires a warrant.

"For all the foregoing reasons, we conclude that Tracey had a subjective expectation of privacy in the location signals transmitted solely to enable the private and personal use of his cell phone, even on public roads, and that he did not voluntarily convey that information to the service provider for any purpose other than to enable use of his cell phone for its intended purpose. We arrive at this conclusion in part by engaging in the “normative inquiry” envisioned in Smith. See Smith, 442 U.S. at 740 n.5. There, the Supreme Court cautioned that where an individual’s subjective expectations have been 'conditioned' by influences alien to the well-recognized Fourth Amendment freedoms [as you write, "a belief nurtured by a government agent"], a normative inquiry may be necessary to align the individual’s expectations with the protections guaranteed in the Fourth Amendment."

At Volokh Conspiracy, Prof. Orin Kerr did not think the court's reasoning very clear.

It seemed obvious to me, but perhaps the court should have been more explicit, that the court was holding that third party disclosures are not immune from such a "normative inquiry."

The decision appears to be in line with decisions of the Court to require a warrant to intercept calls on public phones and to intercept heat emanating from houses.

From my own point of view, while we accept that providers track our every movement, we do not actually expect any person to know where we are. That is a reasonable expectation of privacy, regardless what may be possible based upon an abstract acceptance of what the electronic system is capturing.

I think the same logic applies to hotel guests. One accepts one might be seen entering or leaving the hotel, that any member of the staff might have access to the guest list, but as a practical matter, a guest doesn't think they have abandoned any expectation of privacy outside of limited contractual terms, particularly as it relates to the government.

I am interested in your argument 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."

What implications might that have for activities like the government flying planes over private property with binoculars to survey the foliage?

It's not exactly the same situation and there is good reason for the plain view doctrine, but I see a potential impact (perhaps for the better) not required by the 4th Amendment. But should it be?

Joe said...
This comment has been removed by the author.
Joe said...

The "undercover friend" concern is sound and would the important thing is "undercover" -- the person is acting like a state agent.

A person that turns friends in might be seen as a "squealer," but that is private action akin to turning in stolen property one finds at a friend's home.

When the government actively signs people up as a sort of living electronic surveillance device, it should be deemed as a search requiring a warrant.

Fact is, probably, it would usually be fairly easy to get a warrant anyway. But, the minimum protections available should still be followed.

I appreciate Sotomayor's concurrence. The "voluntary" nature of the handover is dubious given the realistic need of things like bank accounts in the first place. But, at best it is only voluntary for a limited purpose. And, even then & especially now, letting the government see the data violates privacy in a significant way.

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