Bulk Telephony Metadata Collection and the Fourth Amendment: The Case for Revisiting the Third-Party Disclosure Doctrine the Digital Age

Abstract

Thus far, two United States District Courts have considered the legality of the National Security Agency’s bulk data collection and have reached opposite conclusions. This Paper argues that federal courts should seize on the opportunity presented by the Snowden leaks to reexamine the continued vitality of the current third-party disclosure doctrine in Fourth Amendment cases. Specifically, this Paper will argue that Smith v. Maryland simply cannot continue to act as the “North Star” for judges navigating the “Fourth Amendment waters” of the digital age. Instead, this Paper argues that Smith should apply more narrowly in the digital age. In doing so, this Paper advocates that courts apply a modified, two-step test to third-party disclosures rather than applying the traditional binary rubric that courts have drawn from Smith and United States v. Miller — i.e., if information is disclosed that information is unprotected. Specifically, this Paper suggests that courts ask first, what individuals reasonably expect the scope of their disclosure to be and, second, whether a particular surveillance program is capable of revealing information beyond what those individuals reasonably expected to reveal. If the technology reveals information beyond that which individuals reasonably expected to reveal, then the use of such technology implicates the Fourth Amendment.