CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, February 25, 2021

Arango on The Third-Party Doctrine

Steven Arango has posted Cloudy with a Chance of Government Intrusion: The Third-Party Doctrine in the 21st Century (Catholic University Law Review 2020) on SSRN. Here is the abstract:

Technology may be created by humans, but we are dependent on it. Look around you: what technology is near you as you read this abstract? An iPhone? A laptop? Perhaps even an Amazon Echo. What do all these devices have in common? They store data in the cloud. And this data can contain some of our most sensitive information, such as business records or medical documents.

Even if you manage this cloud storage account, the government may be able to search your data without a warrant. Federal law provides little protection for cloud stored data. And the Fourth Amendment may not be any better because of the third-party doctrine, which allows the government to search and seize information entrusted to a third party—without a warrant.


This Paper argues that the third-party doctrine does not apply to cloud data, and that a warrant is necessary to search and seize information stored in the cloud. To arrive at this conclusion, it first analyzes the Supreme Court’s creation of the third-party doctrine and its subsequent evolution. The second part outlines cloud storage and data. The third part discusses why cloud information should be secure from warrantless searches. Lastly, this Paper explains why Congress needs to legislate this issue—not the Courts—and offers recommendations on how to do so.

https://lawprofessors.typepad.com/crimprof_blog/2021/02/arango-on-the-third-party-doctrine.html

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