Professor Richard Epstein on the 4th Amendment Third Party Doctrine
Criminals who can't keep secrets have short careers. A big reason for this is the “third-party doctrine” which, as most readers of this blog are probably aware, holds that information shared with others is not generally protected by 4th Amendment restrictions on search and seizure. Put differently, the law does not recognize any reasonable expectation of privacy in information shared with others. This doctrine has been widely criticized and, most recently and notably in an article by 4th Amendment scholar Orin Kerr, defended (The Case for the Third-Party Doctrine, 109 Mich. L. Rev. 561, 563 (2009)). Chicago's own Richard Epstein has recently taken interest in this debate, and presented his preliminary thoughts at this week's Works in Progress (WiP) talk. Essentially, Prof. Epstein thinks current constitutional doctrine is generally correct on this point. He agrees with Prof. Kerr and other defenders of the third-party doctrine that it is worth keeping, though his defense is on somewhat different grounds than those of Prof. Kerr. Since Prof. Epstein comes to this issue as an outsider, he also returns to first principles in his work and asks whether we are analyzing these cases consistently and coherently. His conclusion is to suggest a general method for considering 4th Amendment issues that optimizes the public benefits and private costs of permitting government action in various classes of cases.