In 1976, the United States Supreme Court created a rule that, if strictly applied today, would destroy privacy as we know it. The 1976 case was Miller v. United States, in which the Court held that people have no Fourth Amendment right to privacy in their bank records because those records were disclosed to a third party (the bank). This rule, known as the third party doctrine, essentially established that constitutional privacy rights depend on absolute secrecy of information. Any information disclosed to a third party, regardless of the purpose of the disclosure, is not protected by the Fourth Amendment.
Think: every gmail you draft is disclosed to google, so even your private thoughts, your drafts, your rants that you never even dreamed of sending are not “secret” and thus not private under the third party doctrine. Every television show you watch, every website you visit or search term you enter, and virtually every place you visit while carrying your cell phone, since your phone’s location is logged somewhere on the internet and/or by your cell phone service provider—all of that information is disclosed to a third party and thus is entitled to no Fourth Amendment protection under a strict application of the third party doctrine.
Fortunately, courts have begun to recognize that, as Justice Sotomayor wrote, “[t]his approach is ill-suited to the digital age[.]” Even at the time of its creation Justice Marshall refused to buy in, saying that he “would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”
The North Carolina Court of Appeals had an opportunity earlier this year to bolster privacy protections in the digital age in State v. Perry. Unfortunately, in writing for the majority, Judge Tyson went back to 1976, holding that a person has no reasonable expectation of privacy in their cell phone’s location information once that information has been obtained by the cell phone service provider—a belief that would startle most cell phone users.
As we increasingly interpose technology into our daily routines—wearing fitness bands and Apple watches, for example—the law will need to adapt to “assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” That is, after all, the underlying principle of Fourth Amendment jurisprudence. Hopefully the North Carolina Supreme Court will look toward the future, rather than 50 years in the past, in considering whether to uphold or reverse Judge Tyson’s decision.
Elliot S. Abrams is a Raleigh criminal defense lawyer with the law firm Cheshire Parker Schneider & Bryan, PLLC. Elliot represents people charged with federal and state criminal offenses, public officials targeted by government ethics investigations, and licensed professionals facing professional discipline. Elliot cares deeply about his clients and stands up for them in and out of court. If you or a loved one are in need of legal help, feel free to call him at 919-833-3114.