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The Case for the Third-Party Doctrine:
I have just posted a draft of my latest paper on SSRN: The Case for the Third-Party Doctrine, forthcoming in the Michigan Law Review. The article cuts across the grain of lots and lots of existing Fourth Amendment scholarship by arguing that very controversial cases like Smith v. Maryland were correctly decided. Here's the abstract:
This article offers a defense of the Fourth Amendment's third-party doctrine, the controversial rule that knowingly revealing information to a third party relinquishes Fourth Amendment protection in that information. Fourth Amendment scholars have repeatedly attacked the rule on the ground that it is unpersuasive on its face and gives the government too much power. This article responds that critics have overlooked the benefits of the rule and have overstated its weaknesses.

The third-party doctrine serves two critical functions. First, the doctrine ensures the technological neutrality of the Fourth Amendment. The third-party doctrine corrects for the substitution effect of third parties that would otherwise allow savvy criminals to substitute a hidden third-party exchange for a previously public act. Second, the doctrine helps ensure the clarity of Fourth Amendment rules. It matches the Fourth Amendment rules for information to the rules for location, creating clarity without the need for a complex framework of sui generis rules.

Finally, the two primary criticisms of the third-party doctrine are significantly weaker than critics have claimed. The third-party doctrine is awkward for reasons of form rather than function; it is a consent doctrine masquerading as an application of the Katz "reasonable expectation of privacy" test. Claims that the doctrine gives the government too much power overlook the substitutes for Fourth Amendment protection in the use of the third parties. Those substitutes include entrapment law, common law privileges, the Massiah doctrine, the First Amendment, internal agency regulations, and the rights of the third parties themselves.
  I still have some time before a draft is due at the MLR offices, so any comments or complaints are most welcome. (Please send rotten tomatoes to my work address.)
Ohismith (mail):
I've noticed that some law reviews now have indexes online, and the public can purchase copies of articles they wish to read. How are you able to post your articles for free, when the law review planning to publish it is probably going to charge $$ for it after publication?
5.28.2008 1:55pm
alkali (mail):
Three cheers for the underrated virtue of ex ante (and ex post) clarity.

The argument on that point might be strengthened if you included a pargraph or two discussing how courts actually make those decisions in practice (do they hold hearings? are the issues usually briefed by counsel? how often does the issue arise? etc.).

A nit: I would omit Jack Abramoff's name from your hypo, not out of charity to him but rather because I suspect he'll soon be forgotten, and I expect you'd like to think someone may be reading this article 10 or 20 years from now.
5.28.2008 2:28pm
alias:
Ohismith, here's the MLR current issue with links to pdfs of the articles (and the website has past issues as well). I assume that the same will be available when the article is ultimately published.
5.28.2008 2:42pm
GV:
This is a dumb nit, but here it is: you don't consistently use the hyphen when you use third party as a noun phrase. For example, on page 4, you write: "Absent the third party doctrine, courts . . . ." There should be a hyphen between third and party. (Of course, when you don't use third party as a noun phrase, as I haven't in this sentence, then you don't need a hyphen.) If you do a search of "third part" in adobe, you can quickly scan through your uses of third party and add the hyphen where it is needed.
5.28.2008 2:50pm
FWB (mail):
Is the third party doctrine always coupled directly with the sixth's requirement that witnesses against the party are confrontable by the accused? The third party of course is the accuser and we know that third parties NEVER make stuff up because all humans love one another and never, ever are vindictive.

But please point out any where in the Fourth where the third party doctrine is stated explicitly. Or is it just another piece of garbage those in power pulled out a dark place in order to circumvent the restrictions placed on them by those who hold all authority, the People.
5.28.2008 4:31pm
JBL:
I have no reason to disagree with the article, but suppose I want to send rotten tomatoes to you at your work address anyway.

Does it make a difference if I send them through a third party or should I deliver them in person? Does it make a difference if the third party is a government agency like the post office or a private company like UPS? Or would your workplace itself count as a third party? Does it make a difference if I am a government employee? Since sending someone a box of rotten tomatoes is presumably a form of communication, wouldn't they count as information? Have I killed this metaphor yet?
5.28.2008 8:37pm
OrinKerr:
JBL,

Whatever way works for you works for me; just realize that you relinquish any 4th Am rights in the tomatoes when you send them to me.
5.28.2008 8:47pm
Steve2:
Professor Kerr,

An interesting paper. Unfortunately, I'm not well versed in "consent law", so this comment may be well off-the-mark, but... I'm not sure that your refutation of the doctrinal critique by framing the Third-Party Doctrine as a consent matter rather than a reasonable expectation matter directly addresses the doctrinal critique as presented in the line of thought in footnotes 57-62. Those sources (and similar ones) seem to be arguing from a standpoint grounded in or near the consent matter as well, but arguing that the third party doesn't have the authority to consent because the third party given the information doesn't gain authority over it. I think the argument's that in the public mind, sharing information with a third party establishes a relationship analogous to that of a theater owner and the person who purchases a ticket to gain temporary, limited, use of a seat, not one of co-occupancy and the right to control further dissemination of the information. So I didn't really get a sense that IV.A is addressing that aspect of the doctrinal argument, which seems to me to be that the third party's consent/grant of permission is invalid. Perhaps addressing the Miller-style third party case where the third party has no connection to the government, in addition to a Hoffa-style third party case, where the line between the third party and the government isn't so distinct, could be helpful.

And thinking of Hoffa... There could also be an element of a thought that the general rule of fraud in inducement not vitiating consent is a legal fiction that doesn't reflect people's beliefs regarding their consent, and thus is wrong as a matter of real-world-descriptiveness and normative desirability... that, though, is really going out of your paper's scope.
5.29.2008 9:07pm
Jim Harper (mail) (www):
I've posted some comments on this paper at Cato@Liberty.
5.31.2008 10:25am