 The U.S. First Circuit Court of Appeals in 2024 held that the IRS did not violate the Fourth Amendment when it scooped up the financial records of one James Harper through a broad dragnet of the Coinbase cryptocurrency exchange. The court based this finding on a sweeping interpretation of the “third-party doctrine,” which “stems from the notion that an individual has a reduced expectation of privacy in information knowingly shared with another.” Given the terabytes of personal data that technology forces us to hand over to third-party companies, including our most intimate data – personal communications, online searches, health issues, and yes, financial holdings – does this mean that, as the First Circuit and other lower courts have ruled, there is essentially “no legitimate expectation of privacy” in that data? Consider that the U.S. Supreme Court has repeatedly held that the Fourth Amendment protects “that degree of privacy against government that existed when [it] was adopted.” Times change and technology evolves. Any inquiry into reasonableness should require a periodic recontextualizing of what the Founders intended. That’s not anti-originalism; it’s just a common-sense application of original intent with new technology and capabilities. The Supreme Court did just that in Carpenter v. United States, holding that the warrantless seizure of cell phone records constitutes a Fourth Amendment violation. In this case, at least, the high Court held that a reasonable expectation of privacy exists even when information is held by a third party. As the Court wrote, “when an individual ‘seeks to preserve something as private,’ and his expectation of privacy is ‘one that society is prepared to recognize as reasonable,’ official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause.” That goes not only for cell phone records but for any data that is supposed to be private. In our brief that PPSA filed with the Court, we explain that: “Despite Carpenter’s clear warning against allowing the third-party doctrine to degrade privacy via a ‘mechanical interpretation of the Fourth Amendment’ … lower courts have generally failed to heed that warning. Rather, they mechanically first ask if the information was disclosed to a third party and then treat this disclosure as a complete carveout from Fourth Amendment protections unless the circumstances closely or identically match Carpenter’s narrow facts.” In this era of breakneck technological change and cloud computing, much of our personal information is disclosed to third parties – even information of the most sensitive kind. An interpretation that third-party disclosure automatically nullifies your right to privacy is a flawed approach in the 21st century. As we demonstrated in our brief, the Supreme Court must act to “prevent a contrary understanding of Carpenter from continuing to erode Americans’ privacy as third-party storage becomes ubiquitous and artificial intelligence becomes powerful enough to piece together intimate information from seemingly innocuous details about a target’s life.” Technology is evolving too robustly and too rapidly for the third-party doctrine to remain stuck in the era of paper bills. The First Circuit’s extreme interpretation of the third-party doctrine is a quaint vestige of a prior age, no longer equal to technologies that the Supreme Court ruled contain all “the privacies of life,” and it would make the Fourth Amendment a mere piece of ink on parchment rather than a true safeguard of Founding-era levels of privacy. Comments are closed.
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