I send an email to my attorney. Technically it goes through a third party: My email provider. Third party communications are not given privacy protection under the 4th Amendment.
A powerful example of how the values espoused in the Constitution are running smack dab into the quantum leaps in technology.
The Supreme Court has held that an individual relinquishes any Fourth Amendment interest in information that he or she voluntarily discloses to a third party. Known as the “Third Party Doctrine,” this controversial rule is increasingly problematic in an age where a large proportion of personal communications and transactions are carried out over the Internet. Internet users expose virtually all of the information they generate online—e-mails, web-surfing histories, search terms, and more—to online service providers. As such, many scholars have assumed that Internet information will be unprotected by the Fourth Amendment.
Yet the information disclosed to these online third parties is generally not exposed to human beings at all; rather, it is processed entirely by automated equipment. Neither courts nor scholars have squarely addressed whether disclosure to these automated third parties is sufficient to eliminate Fourth Amendment protection. However, courts have, without discussing the issue, already begun to treat automated Internet systems as the equivalent of human beings.
This Article explores these implications, challenging existing privacy market theories and conceptions of user behavior, and proposing a new model of Fourth Amendment privacy on the Internet.