Whether the rise of cloud computing has rendered the third party doctrine redundant and whether it calls for revisiting the age-old doctrine to decide its place in today’s digital space is a mod doctrine is a legal principle, enshrined in the Stored Communications Act (SCA) of the United States of America. It states that when one knowingly divulges any information to a “third party”, he/she voluntarily relinquish Fourth Amendment protection on that information. The Fourth Amendment to the US Constitution, a part of the Bill of Rights, reads as follows:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In brief, a man’s home is considered to be his castle and he is provided complete protection from searches or seizures, and privacy from wanton intrusion into its premises, unless a probable cause arises to justify the issue of a search warrant. But during interactions or transactions with “third parties”, he should watch out for himself. When the doctrine came into being, the times were very different. Back then, physical searches had to be conducted to discover facts, and so a warrant was required. But now, a vast array of information is available through an online search and it doesn’t even require a search warrant.
Unlike how it is in the present world, not every interaction or transaction had a third party intermediary, in earlier times. And most certainly, there weren’t social media websites like Facebook and search engines like the omniscient google. But now, the times have changed. Quintals of information is available at the click of a button and provisions like the “third party doctrine”, only make it easier to access them. And when we blindly agree to the terms of conditions to utilize the service of Facebook or google, we willingly forego our right to privacy, making it all the more easier for our information to be accessed by unintended parties. When one signs up for loyalty cards, makes credit/debit card transactions, uses an online cloud, subscribes to a website or even reads a website, a third-party record is created. In the indelible language of bits and bytes the information is etched in one’s digital doom. Private messages are permanently stored somewhere in the digital space. Normally it is inaccessible to everyone (including the CSA). But they can be retrieved by the Internet Service Provider (ISP), on request. And only a subpoena and a prior notice are required to force the ISP to disclose the contents of the user’s email or the files stored on a server. For instance, our deleted Facebook photos are no longer ours, but they now belong to somebody else and shall always be so; somewhere coded in bits and bytes.
As scary as that sounds, it only gets scarier when we explore another facet of the issue- the problem of government surveillance. The fact that our past online social history is permanently saved means that it is perpetually at the beck and call of government agencies. The Government is empowered to police our past and our present online activity in the name of deterring future undesirable actions. Hence, it should be realized that with the technology boom that is happening today, the “third party doctrine” is also a boon to the snooping agencies. Prominent jurist, Justice Sonia Sotomayor, has suggested that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” an extremely encouraging development considering that it comes from a judge of the US Supreme Court.
This brings us to the end of the discussion. The third party doctrine reeks of problems and it has led to innumerable controversies. Further, it is a rather redundant law and has remnants of a colonial era in it. In providing a legal sanction for extensive access of information by “agencies”, it has created a recipe for disaster. It has to be viewed from a critical angle and altered to suit the changing times of today’s hyper connected world.
By: Lakshana R, NALSAR University of Law