Due to the COVID-19 pandemic, the U.S. Supreme Court has delayed until its 2020 Term the oral arguments and decisions in a number of its cases. One of those cases poses a Fourth Amendment question about the meaning of a “seizure” and whether it encompasses a police officer shooting and injuring a civilian who nonetheless escapes. This question may be taking on greater significance in the current climate of hostility between “Blue Lives” and “Black Lives.” A different part of the Fourth Amendment, freedom from unreasonable “searches,” may be due for a reexamination as well. In this column, I will specifically propose revising a longstanding doctrine that has attracted criticism but not the specific critique I will offer here.
Katz v. United States
In 1967, in Katz v. United States, the Supreme Court held that police trigger application of the Fourth Amendment ban on unreasonable searches when they record private telephone conversations. Justice Harlan’s concurrence, which later became the law, explained that people have a reasonable expectation of privacy in their telephone conversations. This step overruled the Court’s position in Olmstead v. United States, which held that tapping phones did not implicate the Fourth Amendment (at least so long as the wires did not physically intrude upon the target’s property). We can best understand Katz as moving the focus of “searches” from property to privacy. For the rest of the twentieth century and most of the twenty-first, so far, the privacy test has prevailed as the primary way to determine when the police have conducted a search.
Despite the seemingly revolutionary doctrinal shift, little changed after Katz became the law. The Court ruled, successively, that there was no reasonable expectation of privacy in one’s garbage left in an opaque bag at the curb for trash collection (California v. Greenwood); in one’s “open field” in the area beyond the curtilage around one’s home, even if the field is surrounded by fencing and no-trespass signs (Oliver v. United States); or even in one’s enclosed but not fully covered “curtilage” when viewed from an airplane (California v. Ciraolo) or a helicopter (Florida v. Riley) within navigable airspace.
Though the above decisions have attracted their share of criticism, one category of cases may have drawn the most. One of the important ones in this category is United States v. White. In White, the Court held that police may send an undercover officer to become close with a target and then simultaneously transmit and record the target’s confidences to the officer, all without a warrant, without probable cause, and without any reason whatsoever. This means that if police become curious about your personal life, they can send along an agent to gain your trust and elicit your secrets, and that agent can wear a wire (or use an iPhone) to record and simultaneously transmit what you say to other police officers. The case followed in the footsteps of cases that included Hoffa v. United States, On Lee v. United States, and United States v. Lopez. This decision, which came down only four years after the Court decided Katz, seemed completely inconsistent with Katz. If you cannot spy from the outside on an individual’s telephone conversation without probable cause and a warrant, then on what logic could you do so from the inside, using a state actor who plays the role of pretend friend? If eavesdropping on a phone call is a search, then so is conning your way into being a party to the phone call. And yet the personnel on the Supreme Court had not changed nor had anyone offered much of a distinction between the two cases.
An Account of Why It is Katz rather than White that Needs Explaining
Smith v. Maryland and United States v. Miller carried forward the thirty party doctrine begun in undercover cases such as Hoffa, Lopez, and White. Smith held that if a private person makes telephone calls, the police may gather the numbers that she has dialed without triggering Fourth Amendment requirements. The logic is that the caller automatically gives that information to the telephone company by making calls, and that conveyance of information forfeits the caller’s privacy in the facts that she conveys. Miller held similarly that the government may demand a person’s bank records from the bank without a warrant or any other showing of reasonableness under the Fourth Amendment. The logic, again, was that the information that people surrender to the bank is no longer private; telling something to a third party represents a forfeiture of privacy. Once you forfeit your privacy, the Fourth Amendment no longer protects it.
We refer to the principle described in these cases and those that follow in their footsteps as the “third-party doctrine” because showing something to a third party forfeits any reasonable expectation of privacy in that thing. People have leveled a number of criticisms at this doctrine. One example is the argument that the phone numbers we dial and our bank records are in fact private, and neither entity involved (the telephone company, the bank) is in the habit of sharing the information that its customers entrust to it. Some private activity necessarily requires more than just the one individual who wishes to claim a reasonable expectation of privacy. In these two cases, for instance, the individual cannot even make a private phone call without sharing the phone number of the other person with the phone service provider (the telephone company), and a person would have to hide his money under a mattress to fully insulate his personal financial information from going to any third party. Third parties are an essential part of creating and maintaining the very things that individuals wish to keep private.
Privacy is not always a one-person affair.
We can best understand White as a third-party doctrine case as well. Most of us focus on privacy in conversations, on which critics seize as requiring White to follow Katz. But the third-party doctrine would say that it is a case about voluntarily surrendering information to a third party and thereby forfeiting privacy in that information. If you talk to someone (because you believe he is a friend), then you have parted with your privacy in whatever you told him. The notion that you lack any reasonable expectation of privacy in your friends is not, as I myself have sometimes thought, a way in which privacy in friendship differs from privacy in other contexts. There is no reasonable expectation of privacy in third parties, whether friend, telephone company, bank, or garbage collector.
In critiquing White for all these years, I have been assuming not only that it and Katz are inconsistent but that of the two of them, White is the anomaly. If we understand and accept the full breadth of the third-party doctrine, however, then it becomes clear that Katz is the real anomaly. In Katz, the petitioner made a telephone call from a phone booth to a third party. The government intruded upon the conversation by recording it with a tape recorder sitting on top of the phone booth (a description that should perhaps carry an “okay boomer” warning). The speaker thus forfeited his privacy in the words he uttered into the phone by making his utterances to a third party.
Some would say here that actually, Katz is different from White because Katz surrendered his statements to a third party who wanted to keep his secrets, while White surrendered his utterances to a government actor (a pretend friend) who intended to hand the government the information in question. While this distinction is accurate, it (a) could cut in either direction and (b) is actually irrelevant.
Attaching a recording device to a room in which you are speaking privately with a friend is offensive to many of us. However, retaining a government con artist to impersonate a friend and thereby induce you to tell him personal things that he records is arguably even more offensive. In both cases we are recorded, but in the second, we also suffer the fate of being a con artist’s “mark.” In any event, this distinction between the two cases is irrelevant. The third-party doctrine never turned on the willing participation of the third party gathering the formerly private information. Instead, the typical scenario involves the government ordering the third party to hand over the private information that the target entrusted to the third party. The telephone company and the bank did not choose to betray their respective customers. The government forced them to do so. And the question was whether the force involved violated the target’s reasonable expectation of privacy, and the Court’s answer was no.
Thus in Katz, the person on the other end of the phone received confidential communications from Katz. The government forcibly obtained those communications by recording them as they took place. Katz’s friend, like the telephone company and bank, was not asked for permission to gather data about the target. And their lack of choice, under Smith and Miller, would have had no effect on the Court’s holding. It is the decision to entrust putatively private information to a third party and not the third party’s decision to expose what was private, that functions as a forfeiture. In other words, Katz and White are indistinguishable because of the third-party doctrine, and both should have come out in favor of the government.
Carpenter and Hope for the Katz Paradigm
Two years ago, the Supreme Court decided Carpenter v. United States. The case involved the question whether a person with a cellphone has a reasonable expectation of privacy in the cell site location information that service providers automatically compile whenever the phone is on. Functionally, this means that the Court was considering whether it is a search for the government to ask service providers to hand over records of approximately where a particular cell phone was at all times, a piece of information that generally correlates with the location of the human attached to the cell phone. People made the argument that the government should not have access to a running record of where each of us is at any given time. That would be far too invasive of our privacy.
The person who releases cell site location information to his provider (as one does automatically when one’s phone is on), of course, thereby hands such private information to a third party. The Court was thus poised to decide the fate of the third-party doctrine. Instead, the Chief Justice, writing for the Court, described the data collection involved as too invasive of privacy to fall outside the scope of the word “search” in the Fourth Amendment. The Court said it would not tell us its view of the third-party doctrine but would not “extend” the doctrine to the cell site location information context. Fans of privacy were happy with the outcome, but the claim that the Court was simply choosing not to “extend” the third-party doctrine was implausible. The doctrine naturally covered the situation at issue, so the Court was simply unwilling to apply the doctrine in a way that would expose people to government tracking of their whereabouts without any basis for suspecting them of wrongdoing. Privacy thus trumped the third-party doctrine. Perhaps that will happen again as technology and accompanying possibilities for invading privacy progress and proliferate. If the Court ultimately rejects the third-party doctrine, then one of the surprise benefits is that the true foundation for White, the doctrinal argument for it that isn’t empty of reasoning, would collapse and lead to the end of White and a more vital and principled Katz, which would no longer remain an anomaly.