Americans enter their personal information into websites, use it to access bank accounts, and make digital transactions daily, never realizing that under the “third-party doctrine,” they’re giving up their right to keep that information private and subject to warrantless digital searches.
The third-party doctrine is a legal principle stating that individuals have no reasonable expectation of privacy regarding information they voluntarily disclose to a third party.
In other words, if someone gives their information to Venmo to pay the babysitter, the Internal Revenue Service can access that information without a warrant.
The Kansas Justice Institute — like the Sentinel, owned by the Kansas Policy Institute — along with the Goldwater Institute and American Dream Legal, have filed an amicus brief in the U.S. Supreme Court in support of a lawsuit by James Harper and the New Civil Liberties Alliance challenging the third-party doctrine. The case is Harper v. O’Donnell. The brief urges justices to consider how state supreme courts have addressed warrantless digital searches in rejecting the third-party doctrine under their state constitutions.
“According to the United States Supreme Court, you don’t have a reasonable expectation of privacy in the things you share with someone else,” KJI Litigation Director Samuel MacRoberts said in a release. “At KJI, we don’t think that’s right. Sharing sensitive and confidential information with others — through email, apps, and so on — shouldn’t mean you surrender your Fourth Amendment rights.”
Harper was one of 14,355 Coinbase account holders whose digital financial records—spanning 8.9 million transactions—were seized by the IRS without a warrant.
“Every day, millions of Americans engage in digital transactions through third-party platforms. They purchase stocks online, buy goods on Amazon, and pay the babysitter on Venmo,” the brief reads. “To do so, they must entrust their personal financial information to digital third-party platforms. And each transaction is tracked. This reality is inescapable in a digital economy.”
According to the brief, the First Circuit held that the IRS did not violate the Fourth Amendment when it seized the Coinbase records. “In their view, Mr. Harper lacked a protectable privacy interest in them under the third-party doctrine.
The First Circuit used precedent in the 1976 case United States v. Miller and stated the coinbase data “is directly analogous to the bank records” and thus “falls squarely within this ‘third party doctrine.’”
The First Circuit’s mechanical interpretation of Miller is ill-suited to the facts here, according to the parties filing the brief. For one thing, Miller was decided in an era before pervasive password protection (or its equivalent) — a distinction that makes all the difference …” the brief reads. “But more importantly, the Fourth Amendment demands more than what this Court in Carpenter v. United States, 585 U.S. 296, 305 (2018), called a ‘“mechanical interpretation”’ of constitutional doctrine that leaves Americans at the mercy of advancing technology.”
KJI and its partners argue that Americans entrust their private information to third parties such as Google, Microsoft, or Apple, believing that information is their property and that a warrant would be needed to access it.
“In 1976, it was plausible to say that a person who ‘voluntarily confides in another’ is assuming the risk of that information being revealed,” the brief reads. “But in today’s society—at least with respect to password protected smartphones, password-protected online bank accounts, and password-protected email — it is far less plausible to suggest that the users of such technology are assuming the risk of disclosure, betrayal, or revelation.
“To hold that in doing so, they have abandoned their right to be secure in their papers and effects, or that it is ‘reasonable’ for the government to acquire this information without a warrant, is to elevate formalism over reality in the most extreme of ways. Moreover, when people password protect their data they are explicitly protecting their data from search.”
KJI and its partners argue that warrantless digital searches is an issue that must be addressed.
“This is an issue that can no longer be avoided,” the brief reads. “Too many Americans now entrust their information to third parties, which renders them vulnerable to intrusions on their privacy under the Miller rule — intrusions that simply are not ‘reasonable’ in the sense the Fourth Amendment intended. The Court should take this case to resolve that issue.”
