The Supreme Court’s Opportunity to Legalize Privacy - The Objective Standard

Privacy is, today, effectively illegal.

On a typical day, we share information about ourselves with several “third parties”: Internet service providers, social media companies, stores, banks, and more. Thanks to technology, this sharing makes our lives richer and more convenient.

Enter the “third-party doctrine.” It says that, once we share information with a third party, the Fourth Amendment warrant requirement no longer applies. In other words, the government may obtain whatever information we share with third parties, without presenting a warrant based on probable cause and particularized suspicion. All your data belongs to the U.S. government—unless there’s a statute protecting it.

Even when a statute protects data from government’s prying eyes, it typically requires the government to produce something less than probable cause and particularized suspicion. Moreover, once the government has obtained assorted pieces of information about you, all it takes is a president’s “pen and phone” to combine databases across alphabet-agency lines. Soon all of the data about your daily activities is collected in one place, accessible to any politician, bureaucrat—or hacker. . . .

Endnotes

1 Amy L. Peikoff, "Of Third-Party Bathwater: How to Throw Out the Third-Party Doctrine while Preserving Government's Ability to Use Secret Agents," St. John's Law Review 88, no. 2, article 3, Summer 2014, https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=6679&context=lawreview.

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