74 Am. U. L. Rev. 1 (2024).
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Abstract
When a person gives information or something tangible to someone or a business, the Fourth Amendment’s third-party doctrine allows the government to obtain that evidence without a warrant or probable cause. The third-party doctrine is premised on the rationale that we hold no reasonable expectation of privacy when we voluntarily expose information to others, that we assume the risk that the third party would share the information, and that we must deal with the consequences of that misplaced trust. The doctrine originated from a series of cases where law enforcement obtained information revealed by criminals through their mistaken trust of other criminals, snitches, or undercover agents posing as criminals, as seen in On Lee v. United States, Lopez v. United States, Hoffa v. United States, Lewis v. United States, and United States v. White.
While the logic behind the impetus for third-party doctrine might appear sound, the doctrine’s applications have been faulty. The third-party doctrine makes sense when applied to criminals and personal relationships, such as friends, family, and neighbors. But the third-party doctrine is incongruous when applied to legitimate commercial relationships, business transactions, or business records, as in United States v. Miller and Smith v. Maryland. We have a reasonable expectation of privacy within legitimate commercial relationships and business transactions because that expectation is protected by contractual duties and rights, industry norms that ensure proper business conduct, assurances given by the business or an independent party to secure our confidence, and legal recourse to vindicate our expectations. Commercial relationships differ significantly from personal relationships because of the differences in trust and privacy expectations between friends and businesses. Legal norms support and reinforce our privacy expectations with businesses and commercial relationships. Our expectation of privacy within business transactions is ensconced in and recognized throughout the legal system—common law, statutes, constitutions, and international law.
Based on the commonsense differences between commercial and personal relationships, this Article is the first to propose a new theory for the third-party doctrine by restraining its application only to the context of personal relationships. This theory is the most comprehensive model that has been proposed for refining the third-party doctrine and ensures that our privacy does not shrink as technology expands.
* Professor of Law, University of Oklahoma College of Law. J.D., University of California at Berkeley School of Law; B.A., University of Florida. I am indebted to Daniel P. O’Gorman, Christopher Slobogin, Michael Mannheimer, and the participants of the SMU Dedman School of Law Deason Criminal Justice Reform Workshop, ACS Constitutional Law Scholars Forum at Barry Law School, Southeastern Association of Law Schools Criminal Procedure Workshop, and Loyola Chicago University School of Law Constitutional Law Colloquium for their insightful comments. I thank Pamela Metzger and Kenitra Brown for the opportunity to present parts of this Article at the Criminal Justice Reform Workshop and for coordinating the Workshop. I am grateful for excellent research assistance and editing provided by Jade L. Grey, Andrew Grim, Darielena Lamastus, Catherine McCabe, Gianna Morgado, and Kathleen C. O’Gorman; help from Law Reference Librarians Diana Botluk, Jason Murray, and Louis Rosen; administrative help from Katherine Sutcliffe-Lenart and Lucinda Machado; and support through the summer research grant. I am also very grateful for the extraordinary and meticulous work of the American University Law Review editors and staff.