Saturday, June 10, 2017

24.3 - Footnote: Supreme Court might reconsider "third party doctrine"

Footnote: Supreme Court might reconsider "third party doctrine"

As a Footnote to that, there is also a hope that SCOTUS will use the opportunity to revisit and from my perspective hopefully reverse the so-called "third party doctrine."

That is a to-me-bizarre legal principle derived from two 1970s Supreme Court cases. This principle holds that information you voluntarily share with someone else - whether that "someone else" is your bank (such as your account information, your record of deposits and withdrawals), the phone company (what numbers you call, when and for how long), or anyone else - isn't protected by the Fourth Amendment because you can't expect that third party to keep that information secret.

There is, of course, the notion of "reasonable expectation of privacy," but this doctrine holds that as soon as you share any information with anyone, you willingly surrender all such expectation. Ultimately, the principle means that in the absence of specific legal protection (such as doctor-patient or lawyer-client confidentiality) or - maybe - a binding legal contract with that other party, the government is entitled to know anything you tell anybody. Suppose you send a private letter to someone. As soon as they open that letter, you have "voluntarily shared" whatever is in it and so the government can see it, too. Your only true legal privacy lies in information and thoughts which you never share with anyone.

I always found it offensive and absurd, more the logic of a police state than a free one, and it's even more absurd and yes dangerous now.

As Sonia Sotomayor said back in 2012 in another Supreme Court decision, the "third party doctrine" is
ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks
and that it's time to stop treating "secrecy as a prerequisite for privacy."

Again, recent cases give some reason to hope that SCOTUS will move from 1977 to 2017. And if that happens, yeah, that would be really Good News.

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