Document Type

Article

Publication Title

Berkeley Technology Law Journal

Abstract

The purpose of this Article is to offer some reflections on the Third- Party Doctrine as it has evolved under the Fourth Amendment. This doctrine holds that an individual who passes information on to some third party cannot claim any Fourth Amendment protection when the government, with an eye to criminal prosecution, seeks to obtain that information from the third party. The received judicial wisdom is that any person who chooses to reveal information to a third person necessarily forfeits whatever protection the Fourth Amendment provides him. This conclusion has been widely attacked. Professor Kerr's recent defense, which sought to bolster the rationales offered by the Supreme Court, has enlivened the debate. My job on this occasion is to review the debate as someone who comes to the problem from outside the field of criminal procedure, but with a strong commitment to the principles of limited government. In dealing with the vexing question of whether a person has a reasonable expectation of privacy in information disclosed to a third party, I do not think it is necessary to come down clearly on one side or the other. It is more important to parse the arguments in order to develop a unified approach to this question that can win adherents both within the field and beyond it.

First Page

1199

Volume

24

Publication Date

2009

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