The Outdated Third-Party Doctrine

Efrain Alvarado III

3/5/2017

A Fourth Circuit case, United States v. Graham (2016) brought to light the relevant issue of the Supreme Court’s third-party doctrine. The doctrine holds that “people cannot reasonably expect privacy in information they willingly disclose to third parties, and thus, that government intrusions on such information are not Fourth Amendment searches.” In United States v. Graham, the precedent set by a previous case based on the Court’s third-party doctrine was affirmed. Two men (Aaron Graham and Eric Jordan) were arrested as a result of eyewitness testimony and subsequently found physical evidence. The police requested permission via the Stored Communications Act (which gives the government authority to compel disclosure of certain records under a lower standard than probable cause) to force Sprint/Nextel to provide the historical cell-site location information (aka CSLI, cellphone provider’s records of the cell tower used for each individual phone’s calls and messages) of Graham and Jordan for a total of 221 days. Using this data that corroborated the location of the suspects, prosecutors were able to place Graham and Jordan at the scene which ultimately led to their conviction.

The two motioned to suppress the acquired CSLI in district court, saying it was obtained as a result of an unconstitutional search. The district court ruled that the third-party doctrine applied, and as a result the defendants did not have a legitimate expectation of privacy in relation to CSLI that the court saw as voluntarily conveyed to their service provider. Graham and Jordan, despite conviction at a jury trial, appealed again on the grounds that the acquisition of their CSLI by the government was a violation of their Fourth Amendment rights.

The Fourth Circuit court did agree with Graham and Jordan’s grievance that the government invaded their reasonable expectation of privacy by tracking their CSLI for an extended amount of time, and they rejected the government’s assertion that the service provider’s user agreement constituted a loss of privacy for users because the company collects rather than discloses information, and since users are generally ignorant as to the details of such agreements. Additionally, the court ruled that because users don’t actually voluntarily information to service providers, the third-party doctrine cannot apply to CSLI. However, en banc the Fourth Circuit reversed its findings. The court ruled that the defendants, in using their phones, assumed the risk that their service provider would provide that information to the government. They also rejected their argument that the information was not voluntarily conveyed on the basis that they chose to use cellphones despite knowing that their location is recorded as a result. The Fourth Circuit, despite claiming to acknowledge that technology has changed people’s expectations of privacy, cited Supreme Court precedent as the reason for their ultimate ruling. They found that only the Supreme Court or Congress had the authority to rectify this issue, something that requires serious consideration. The third-party doctrine seems grossly outdated and detrimental to the privacy rights of all citizens, not just people accused of crimes.

United States v. Graham. (2017, February 10). Retrieved March 4, 2017, from http://harvardlawreview.org/2017/02/united-states-v-graham/

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