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The Third Party Doctrine, and What Does the Fourth Amendment Do?:
Over at Technology Liberation Front, the Cato Institute's Jim Harper has an interesting response to my new Fourth Amendment paper, The Case for the Third Party Doctrine, forthcoming in the Michigan Law Review. Jim writes:
  My differences with Kerr are plentiful. Starting at the 30,000 foot level, my sense is that Kerr is treating the Fourth Amendment as a rule about criminal procedure. Oh sure, it's classed that way in the legal academy, it has most of its application in criminal cases, and I first studied Fourth Amendment law in my constitutional criminal procedure class. But add this to the list of things I didn't learn in law school: The touchstone of the Fourth Amendment is the security of the people—all of them—against unreasonable searches and seizures of their persons, houses, papers and effects. "The people" refers to all of us, the law-abiding citizens. . . .
  The welcome vision displayed in Katz counsels that the Fourth Amendment should naturally protect people as they come to use other instrumentalities — automated machinery owned by third parties, in particular — to expand the scope of their lives yet again. . . .Technological neutrality isn't really relevant. What's relevant is preserving the same security for people and their stuff that they should have in a free society.
  I think Jim has accurately identified a major gap between us: I treat the Fourth Amendment as a doctrine about criminal procedure, while Jim treats it as a way of ensuring a free society. The two approaches lead to very different criteria for analyzing Fourth Amendment rules. My approach generally focuses on whether rules pragmatically balance public safety and civil liberties in a regime backed by the exclusionary rule, whereas Jim's approach looks to what is necessary to protect civil liberties and generally assumes that other legal mechanisms can take care of public safety concerns.

  The interesting question is, where are we getting our understandings of what the Fourth Amendment means? My own view is candidly descriptive: I think this is what the Fourth Amendment means because this is what the Justices and the judges think it means. The notion of the Fourth Amendment as a tool of reasonable criminal procedures is, in my view, the basic post-Katz understanding of the Fourth Amendment held almost universally by the people with the robes. My general approach is to work within the consensus understanding held by the rulemakers and to think about how to apply that understanding rather than to change it.

  But is this really the correct way to interpret the Fourth Amendment? Is this the true Fourth Amendment? Well, if you're an originalist, it's not really close to the original meaning of the Fourth Amendment, as Professor Davies has persuasively argued. (.pdf) It's a lot closer to the original meaning of the Fourth Amendment than Jim Harper's "free society" concept. But in my experience, the real judges and Justices that make the rules don't really think about such things. They approach the Fourth Amendment as a tool of criminal procedure, and for a lot of reasons there's not much that can be done to change that.

  I think that explains much of the gap between the judges and the scholars in the area of the Fourth Amendment. Many scholars are greatly drawn to Jim's notion of the Fourth Amendment as a guarantor of a free society. I suspect many criminal procedure scholars are drawn to this notion because many crimpro scholars are strongly civil libertarian. If given a choice between a constitutional rule ensuring a free society and a constitutional rule requiring only reasonable police practices in criminal investigations, a civil libertarian presumably would pick the former.

  But the judges see themselves doing something very different; they see themselves figuring out the rules of criminal investigations. As a result, judges normally find most Fourth Amendment scholarship pretty unhelpful. For the most part, the scholarship isn't aware of their world: it imagines a Fourth Amendment that they don't see, and it doesn't often connect with the realities of the one that they do. One goal of my own work in the Fourth Amendment is to help push the scholarship to engage more with the world of the judges, and The Case for the Third-Party Doctrine is an example of a paper that I hope helps to do that.
DavidBernstein (mail):
Ken Kersch, in Constructing Civil Liberties, traces how the Fourth Amendment evolved in Supreme Court doctrine. In the late 19th Century, it was applied to prevent government overreaching in investigations. The Progressives hated this, because it inhibited the growth of the regulatory state. Prohibition, meanwhile, weakened the amendment further. The Progressives first gutted the old understanding of the Fourth Amendment as protecting citizens from broad government "searches" (subpeonas, regulatory filings, etc.), and then, Kersch says, reinvented it during the Warren Court era as primarily protected "street criminals."

There is certainly value in scholars treating current doctrine, within broad confines, as a given, and then defending/critiquing it from there. But there's also value in ignoring current doctrine, and trying to figure out what the Fourth Amendment "should" mean, what it was supposed to mean, and how it came to mean what it means now, the result of which is an understanding that the current interpretation of the Fourth Amendment (as a rule of criminal procedure, in fact) is not "natural" or necessary, or whatnot, but the product of a historically contingent process in which ideological actors invented doctrine to suit their own purposes.

In short, one shouldn't criticize scholars who want to discuss and debate the Fourth Amendment within current doctrinal confines for doing so, nor should one criticize those who want to start from first principles of different sorts (history, philosophy, originalism). But each should make clear what they are doing, and understand they are not engaged in the same debate.
6.5.2008 4:38pm
Michael J.Z Mannheimer (mail):
I treat the Fourth Amendment as a doctrine about criminal procedure, while Jim treats it as a way of ensuring a free society.

Orin,

Perhaps you are both right: perhaps the Fourth Amendment, as incorporated by the Fourteenth, is a rule of criminal procedure whereas the "pure" Fourth Amendment is more about keeping the (federal) government out of our business. After all, the Fourteenth Amendment -- which is what we are really applying in "Fourth" Amendment cases from the States -- speaks of deprivations of "life, liberty, and property without due process of law," obviously referring primarily to the criminal process. The Fourth Amendment, by contrast, refers to "unreasonable" government behavior without limiting the context to the criminal realm (Okay, it also mentions "probable cause," but that is a phrase useful even outside the criminal context).

You are certainly right that most judges see the Fourth Amendment as being about criminal procedure. But that is largely a result of the post-incorporation prevalence of Fourteenth Amendment cases being treated as Fourth Amendment cases.
6.5.2008 4:41pm
OrinKerr:
DavidB writes:
Ken Kersch, in Constructing Civil Liberties, traces how the Fourth Amendment evolved in Supreme Court doctrine. In the late 19th Century, it was applied to prevent government overreaching in investigations.
Well, yes and no. There was actually only one major Fourth Amendment case in the late 20th Century, Boyd v. United States, which was a very creative decision that had little to do with the original understanding of the Fourth Amendment. So while you're right that the later Court changed the Fourth Amendment and mostly overruled Boyd, the change was overruling a case that itself was a change and didn't have much of a historical basis (although it is quite appealing to libertarians on policy grounds).

As for the rest of your comment, I completely agree.
6.5.2008 4:49pm
cboldt (mail):
I would think the amendment would come up most often in criminal prosecutions, because the frequency of events that would otherwise create an opportunity to put the scope of the amendment before a judge is, I think, very small.
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How many 4th amendment cases are there, that aren't in a criminal law context?
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The fourth amendment was tangentially applied in Griswold, but I'm otherwise drawing a blank.
6.5.2008 4:51pm
whit:

I treat the Fourth Amendment as a doctrine about criminal procedure, while Jim treats it as a way of ensuring a free society


iow, you view it from a process analysis, and Jim views it with a results based analysis.

this isn't surprising, since law is all about the process, not the result. at least it should be.

that's why really really bad law can be constitutional and a really good law could be unconstitutional, for example.

i think you hit on the divide very well though. i find frequently in debating (especially with defense attorney types) that they have this underlying assumption about the 4th that IS results based. for example, many have a hard time accepting consent searches or consensual (social) contacts by police, because the result is more cops intruding on more people's private affairs. a results analysis.

i say as long as the cops don't violate the 4th (asking for consent to search when they don't have PC), then it's not a constitutional problem. nothing of course would prevent a state legislature from banning consent searches.
6.5.2008 5:20pm
DavidBernstein (mail):
I don't have Kersch in front of me, but from what I remember he shows that 4th Amendment doctrine was much more robust pre 1920s than modern "whiggish" scholarship acknowledges, and was a major Progressive bugaboo.
6.5.2008 5:51pm
Dilan Esper (mail) (www):
Well, yes and no. There was actually only one major Fourth Amendment case in the late 20th Century, Boyd v. United States, which was a very creative decision that had little to do with the original understanding of the Fourth Amendment.

Professor Kerr, don't you mean the 19th Century?
6.5.2008 6:34pm
David M. Nieporent (www):
this isn't surprising, since law is all about the process, not the result. at least it should be.
That's of course totally wrong. What I think you mean is that procedural rules are about process. Which is obviously true. But most law is not about procedure.
6.5.2008 9:29pm
arbitraryaardvark (mail) (www):
Edmond v Indianapolis is one example of a 4th case in a non-criminal context. Edmonds and Palmer were stopped a roadblock and searched. Palmer was assulted. They objected, sued, won.
Recently I was stopped for failure to signal, arrested, and had my car and trunk searched "incident to arrest." Search incident to arrest doesn't justify a trunk search. Will I be able to find a lawyer to take the case? Probably not.
6.5.2008 9:48pm
Dan Culley:
Although it makes several good points, I have to take issue with a few aspects of your article. First, even though the Fourth Amendment certainly gets applied most often in criminal cases these days, it is by no means a rule of "pure" criminal procedure. Although civil suits for Fourth Amendment violations are not frequent, they are by no means rare or ancient. Given that the Fourth Amendment is directly actionable, it seems bizarre to develop case law totally ignoring that context.

Second, you don't differentiate between information a person gives to a third person with a merely social expectation of privacy as opposed to a legal expectation of privacy. It is hard to say that, when the third party could be punished and even enjoined from releasing a person's information that they do not have a reasonable expectation of privacy. It's here where your total disregard of the civil side runs into the total inadequacy of the substitutes you provide. So what if my bank can sue the police if they arbitrarily ask for my bank records? My bank is not harmed by having to divulge them and I am. The failure to distinguish between these also pervades your argument about technology—you use the person-to-person context, which most people agree should not be a violation, to carry the other facets of the doctrine.

Third, the framing of the examples you give does not reflect police behavior that is proper in a liberal democracy. Each example starts with the presumption the police have person they want to convict of a crime. To find out about that person's crime, the police then seek information about that person from a third party, which they then use to convict the person of the crime. But this is entirely backwards of what we want the police to do, start with crimes and work back to the people that committed them. Rather than take everyone's bank records out of the bank to see who has been buying stuff, the police could have apprehended people possessing unlicensed liquor and then inquired as to how they got it, flipping people up the chain until they had probable cause to suspect Miller or they found Miller's still. The same pattern of action would easily unfold your mob boss example.

Fourth, your arguments about the unworkability of a policy-based standard is not persuasive. Had you focused on the legal protections available to an individual if the third party voluntarily disclosed the information, which would not be particularly difficult to ascertain, the reasonableness of the protecting each type of information would fall into place. Moreover, it is also logical, because the harm to me from the third party disclosing my information to the government is the same as disclosing it to anyone else. Finally, it is hard to see how your common-law privilege approach would be any easier to apply and that would also have the consequence of excluding this evidence from criminal cases entirely, even when officers do have probable cause, and from civil cases as well.

Fifth, your consent-based formulation does not hold up to more than superficial analysis. Certainly, giving information to a third party involves some degree of consent, or at least "assumption of the risk." But if we are to conceptualize the doctrine as part of the consent exception, we need to import all of the doctrine in that area as well. That doctrine is clear—the police cannot exceed the scope of the consent given by the person. So why can the government force a third party to exceed the original person's consent (particularly when the third party does not want to participate and it is clearly state action)?

I don't see how your article addresses these at all.
6.5.2008 10:52pm
Jim Harper (mail) (www):
I've commented further here.
6.6.2008 8:24pm
J. Aldridge:
The Fourth cautions against arbitrary search and seizure outside of law. A law that says police can pull any auto over on certain roads to seize weapons is a perfectly reasonable seizure because law previously made sanctioned such search and seizure.
6.6.2008 11:52pm
J. Aldridge:
I want to clarify my above comment because I had the DC checkpoint controversy on my mind.

What I should had said is, yes the Fourth Amendment is closely connected to criminal procedure, and is not applicable outside of criminal proceedings, e.g., police checkpoints.
6.7.2008 1:58am
sobi:


The touchstone of the Fourth Amendment is the security of the people—all of them—against unreasonable searches and seizures of their persons, houses, papers and effects. "The people" refers to all of us, the law-abiding citizens. . . .


"The people" does refer to all of us. Law-abiding or not.

Fundamental thought difference.
6.8.2008 7:09pm