In the chaos of coming back to Iowa for the holiday and grading finals, I missed this post at Concurring Opinions by Katherine Strandburg. She writes:
The aggressive version of the third party doctrine, which states that sharing with anyone removes reasonable expectations of privacy as to all, is deeply inconsistent with Supreme Court precedent that clearly establishes that sharing “houses, papers, [or] effects” with particular individuals undermines legitimate expectations of privacy only with respect to those individuals.
Georgia v. Randolph, decided in 2006, explained that “assumption of risk” must be evaluated in light of “widely shared social expectations.” Thus, a tenant or hotel guest does not “assume the risk” that a landlord or hotel manager with access to the premises will admit visitors. Nor do parents “assume the risk” that an eight-year-old child will authorize guests to “rummage through her parents’ bedroom.” In fact the majority held that in the case of a home an individual standing at the door does not even assume the risk that a co-tenant will authorize a warrantless search over his or her objection. Chief Justice Roberts and Justice Scalia dissented in Randolph, advocating a more bright line approach to assumption of risk. They argued that “just as an individual who has shared illegal plans or incriminating documents with another cannot interpose an objection when that other person turns the information over to the government … someone who shares a place with another cannot interpose an objection when that person decides to grant access to the police.”
Both majority and dissenters in Randolph agreed, however, that sharing does not eviscerate privacy in the absolute manner presumed by the aggressive version of the third party doctrine. Thus, after the majority accused the dissenters of the “easy assumption that privacy shared with another individual is privacy waived for all purposes including warrantless searches by the police,” the dissent emphasized that the point “is not that a person waives his privacy by sharing space with others such that police may enter at will, but that sharing space necessarily entails a limited yielding of privacy to the person with whom the space is shared, such that the other person shares authority to consent to a search of the shared space.”Strandburg goes on to argue that there should be more Fourth Amendment protection of information disclosed to third parties, especially in light of U.S. v. Jones, where a majority of the Justices indicated that Fourth Amendment violations may occur when a large number of lawful searches, in conjunction, rises to the level of a violation of reasonable expectations of privacy.
I still think that existing interpretations of Smith v. Maryland and the third-party doctrine raise serious obstacles for Fourth Amendment challenges to online surveillance. But Strandburg's perspective, along with the Supreme Court's decision in Jones and Judge Leon's recent opinion that mass collection of phone records likely violates the Fourth Amendment, adds an interesting counterargument to the discussion.