Third party doctrine and the expectation of privacy.

Third party doctrine and the expectation of privacy.

Information has always been of value. For instance in Classical times Caesar's public letters were distributed to the public to glorify his campaigns while his private correspondences of military plans were encrypted with the cipher that bears his name. What both have in common is they need to be handed over to another person for distribution, a third party.

When sending an electronic communication the final act of the writer is to press the send button. Normally this message will appear almost instantly at the recipient's destination. Simple. Simple that is to the user, but the framework on how this occurs is complex. The message must be dissembled under known protocols, shunted between numerous servers and then re-assembled. This process involves various different stakeholders who control the servers and email infrastructure; third-parties into whose hand the message is entrusted. From a legal perspective, what are the levels of privacy involved?

In a letter, there is both the core message and address. While the former has levels of legal protection it is the address, which can be described as metadata, which has been held to be view able by the state,

Two legal cases provide the groundwork for this in the US. In United States v. Miller (1976) during an accident response, untaxed excise material was discovered which lead to an unwarranted search on the defendant's bank records. On appeal it was held there was no "expectation of privacy" due to the commercial nature of these bank records having been created from a voluntarily interaction in the normal course of business. This was affirmed later in the context of e-communications in Smith v. Maryland (1979).This revolved around crank phone calls and the police acting to record the Defendant's dialed numbers. Again it was held that as telephone communications being part of normal business practices then these were not private. Hence it appears that any such metadata information being handed over so as to transmit to another is covered by this.

Whether this ruling will remain in place, specially in light of the recent years Snowden revelations, will be in focus in a number of cases. For instance in the US the Klayman v Obama seeks to distinguish between Maryland and that of the surveillance program by the key differentials of the technologies used and the bulk nature of the collection which are now subject to various data mining techniques and processing power that was not available during the initial rulings in the 1970s. Thus the upcoming judgment on this and other related cases will provide an interesting start to 2015.

See also:

Cellular Convergence and the Death of Privacy by Stephen B. Wicker

If the Supreme Court tackles the NSA in 2015, it’ll be one of these five cases - Ars Technica