Friday, October 5, 2012
Monu Singh Bedi (DePaul University College of Law) has posted Facebook and Interpersonal Privacy: Why the Third Party Doctrine Should Not Apply (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:
Do communications over social networking sites such as Facebook merit Fourth Amendment protection? The Supreme Court has not directly answered this question and lower courts are not in agreement. The hurdle is the Third Party Doctrine, which states that a person does not have a reasonable expectation of privacy to any communication she voluntarily discloses to a person or entity. All internet communications (e.g. status updates, photos, emails) are stored on third party servers or internet service providers (ISPs) and thus would seemingly lose Fourth Amendment protection, allowing the government to obtain the information from the server without first securing a warrant supported by probable cause.Numerous scholars, have weighed in on the issue — analyzing the nature of the communication or the entity to which the information is disclosed — in an effort to show that these communications continue to merit Fourth Amendment protection despite this disclosure. These scholars have understandably focused on internet communications qua communications but, in doing so, have largely ignored the overall effect of communications over social networking sites such as Facebook.
This article steps outside traditional Fourth Amendment scholarship and relies on the concept of interpersonal privacy rights, embodied by substantive due process, equal protection, and First Amendment principles, as way to protect communications over social networking platforms such as Facebook from unwarranted government intrusion. This type of privacy has a history apart from the Fourth Amendment and focuses on the value of interpersonal relationships and the bonds therein. This article interprets the relevant cases collectively and broadly and makes the argument that the concept of interpersonal privacy should apply to social networking relationships over the internet when assessing whether the constituent communication merits privacy protection. Social scientists have recognized that these relationships share the same qualitative structure and can be just as “real” as their face-to-face counterparts. This analysis provides a new way to apply the reasonable expectation of privacy test under the Fourth Amendment — one that avoids the common pitfalls associated with the Third Party Doctrine.