Search Warrants in the Digital Age: Supreme Court Should Look to the States

The Goldwater Institute joined forces with our friends at the Kansas Policy Institute and American Dream Legal to file a brief in the U.S. Supreme Court urging the justices to consider how state constitutions protect privacy rights in cases involving warrantless searches. The lawsuit, called Harper v. O’Donnell, began when the IRS obtained financial information about a person they suspected of violating the tax laws, by demanding the data from a financial company instead of getting a warrant. When it turned out there was no evidence to support the IRS’s suspicions, Harper sued, arguing that the agency’s actions violated his Fourth Amendment right to be free of unreasonable searches.

That trigged a legal theory called the “third-party doctrine,” which says that if you entrust someone else with private information, the government can get that information from that person without getting a warrant. The theory originated a half century ago in a case involving bank account information; the Supreme Court in that case said people have no right to expect such information to remain confidential because banks openly use that it and nobody can reasonably expect it to remain private. But while that theory might have made sense in the 1970s, when banking was almost always done in person, on paper, it makes much less sense nowadays, when people typically do banking online, on their phones, without the involvement of any other human being—and certainly do expect their information to remain private.

The third-party doctrine is even more troublesome when it’s expanded beyond the banking context. After all, anyone with a Gmail account or an online medical service like One Medical shares information with “third parties” all the time. To say that in doing so, you surrender your Fourth Amendment rights to that information is shocking, to say the least. Yet the Supreme Court has never directly addressed the issue. That’s why we’ve asked the Supreme Court to take Harper’s case and limit the dangerous third-party doctrine. 

There’s an obvious path for doing so, too. As we at Goldwater are fond of reminding people, Americans don’t have one Constitution—they have fifty-one. And state courts have often interpreted their state constitutions to provide stronger protections for individual rights than the federal courts recognize. That’s even true when a state constitution uses similar or identical language to the federal Constitution—and many states have rejected the third-party doctrine as unrealistic in the modern age.

Our brief urges the justices to consider those cases, and learn from the decisions state courts have made in protecting their citizens better than the federal courts did in the 1970s.

You can read our brief here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.