Last month, Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit, and his somewhat notorious law clerk, Stephanie Grace, published an opinion piece for the iPad news app, The Daily. In their article, “Pulling the Plug on Privacy,” the authors eulogize the demise of the Fourth Amendment to the United States Constitution, the part of the Bill of Rights that guards against unreasonable searches and seizures. They argue that each of us had a hand in killing the Amendment by unwittingly revealing information about ourselves to third parties, eliminating the need for officials to obtain search warrants to learn about our activities. As they write:
[C]onstitutionally speaking, . . . the Fourth Amendment protects only what we reasonably expect to keep private. One facet of this rule, known as the third party doctrine, is that we don’t have reasonable expectations of privacy in things we’ve already revealed to other people or the public.
They cite, as an example, grocery store club cards that track individuals’ purchases. Police were able to access this information in order to show that a suspected arsonist had purchased a fire starter.
But despite this pessimistic forecast from the Ninth Circuit’s preeminent jurist (and clerk), there might still be some life left in the Amendment. Consider, for example, a Thomson Reuters news article published just yesterday, “A New Law-Enforcement Tool: Facebook Searches.” This article discusses how law enforcement agencies are increasingly seeking search warrants in order access users’ information. While this may appear at first as yet another intrusion into our private affairs, it demonstrates that the Fourth Amendment has not yet been made completely obsolete by the third party doctrine: Government officials still need to obtain search warrants before accessing online information that has been made available to others. So as Mark Twain might have said, “the reports of [the Fourth Amendment’s] death have been greatly exaggerated.”
If you are interested in learning more about search and seizure law, the Alameda County Law Library has numerous well-regarded resources available. Among the most comprehensive titles on the subject is Professor LaFave’s six-volume treatise. And for the most current developments, the library also has attorney-turned-novelist James Scott Bell’s Compendium on Searches and Seizures.