Scott Forsyth, The Daily Record Newswire
Some of you know that my daughter gave up a fine job as a political fundraiser to go to a pricey law school, NYU. In her second year, she is taking a very relevant course dully entitled, “Criminal Procedure — 4th and 5th Amendments.”
Early this semester the class debated what constitutes a search and learned Justice Harlan’s famous two-step test. A search is an intrusion by government into a person’s zone of privacy. For that zone to be protected, 1) a person must “manifest a subjective expectation of privacy in the object of the search,” and 2) society must be “willing to recognize that expectation as reasonable,” Katz v. United States, 389 U.S. 347, 360-362 (1967) (Harlan, J., concurring).
You would think the test, particularly the first step, would be easy to apply, but you would be mistaken. Part of the problem is that expectations change as technology evolves, and the courts have been slow to keep up.
Take the numbers dialed on a land line. Thirty five years ago the Supreme Court held that a person cannot “harbor any general expectation that the numbers (he) dialed will remain secret.” The user of a telephone “voluntarily conveyed numerical information to the telephone company,” which the company stored “in the ordinary course of business.” The user “assumed the risk that the company would reveal to the police the numbers he dialed,” Smith v. Maryland, 442 U.S. 735, 743-744 (1979).
To quote an earlier Supreme Court decision, a search does not occur when a third party turns over information to the government, “even if the information is revealed (to the third party) on the assumption that (the information) will be used only for a limited purpose” and the third party will not betray this confidence, United States v. Miller, 425 U.S. 435, 443 (1976).
Miller involved checks, deposit slips, and monthly statements, which the bank as well as the customer considered confidential. Together Miller and Smith support what is known as the third-party doctrine.
Fast forward to 2014. In some ways life is the same as 1979. You still dial telephone numbers. You still write checks and receive monthly statements.
Yet much has changed. You now communicate with others via email, Twitter, Facebook and cellphone, modes not found in 1979. Banking is done electronically. You surf the Web using third-party search engines. You regularly turn over a great deal of information about yourself to establish desired, and many times necessary, relationships with others.
Miller and Smith would make all of your communications, surfing, and turn overs of information fair game to the government, provided it goes through the third parties. Such a mechanical application of the holdings would seriously erode the protections of the Fourth Amendment today — that there are zones of privacy which law enforcement cannot intrude upon without the check of a warrant issued by a court and based on probable cause.
Advances in communications and changes in the practices of sharing information should not make a person less secure against unreasonable searches and seizures. A person legitimately expects what he emails, tweets, surfs and shares with third parties will not be collected by government, particularly where the exposure is inescapable in the conduct of life.
The third-party doctrine does not need to be abrogated, just nuanced to fit the facts of each case. The federal courts are not yet doing that nuancing. However, some state courts are, drawing on the search and seizure clauses in their state constitutions.
The state courts start from the same premise as Katz, that their clauses protect legitimate expectations of privacy. They depart from the federal courts in the application of Justice Harlan’s test.
Just last month, the Massachusetts Supreme Judicial Court held the collection of historical cell site location information from Sprint was a search under the Massachusetts constitution, for which a warrant was necessary, Commonwealth v. Augustine, 467 Mass. 230 (2014).
The state had obtained a court order pursuant to the federal Stored Communications Act. The high court found the order deficient, because it was only based on reasonable suspicion, the standard under the statute, not probable cause.
The court highlighted the number of cellphones in use, their necessity “to social interactions as well as the conduct of business,” and, most important, their attachment to the person. The last enabled law enforcement to conduct “24/7 surveillance.”
Given these qualities, cell site location information tells much about a person’s “comings and goings in both public and private places” and thus implicates a person’s privacy interest.
Also last month, the Hawaii Supreme Court ruled the collection of identifying information about a member of a nutrition club may be a search under the Hawaii constitution, requiring a warrant, State v. Walton, __ Haw. __ (2014).
Police found a membership card without a name in a backpack at a crime scene. It contacted the club, which released the name of the cardholder.
Contrary to Miller, the Hawaii court pointed out a person may “retain a legitimate expectation that (information shared with a third party) will not be further disseminated for purposes other than those for which they were disclosed in the first place.”
The court remanded the case to the trial court to determine if the defendant had a reasonable expectation of privacy with respect to his name under the circumstances.
It is time to modify the third-party doctrine, to make it more flexible to reflect the emergence of new technologies and changing expectations. If such a modification will not occur at the federal level, then the states, including New York, must do it.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
