Re:DoJ's Gag Order on Reason Has Been Lifted
by _delirium on Monday June 22, 2015 @01:34PM
(#9759858)
The third-party doctrine "proper" is about third parties voluntarily giving information to the government, which the government would otherwise have needed a warrant to get. For example, the government could effectively conduct dragnet surveillance of cell-phone records without a warrant if a mobile-phone company chooses to enter into a commercial data-selling agreement with the government: for $x/record, we'll send you all the call data. This has historically been held to just be a voluntary transaction between parties, so doesn't implicate the 4th amendment.
The hotel case you mentioned doesn't seem to involve that; in this case, the hotel is opposing the request, so there's an adversarial posture between the third-party data holder and the government over handing over the data.
It's true that in Smith v. Maryland "[t]he police did not get a warrant or court order before having the pen register installed", so the original case was a voluntary disclosure in that sense. But installing pen registers isn't voluntary at all these days:
https://en.wikipedia.org/wiki/Pen_register#Pen_Register_Act
So it's reasonable to speak of the third party doctrine being applied to compelled data disclosures, not just voluntary ones.
Today (literally, today), the Supreme Court took a first shot at narrowing the third party doctrine with respect to hotel room records in Los Angeles. [2] The ruling was largely about the procedure a hotel may use to quash (ask a court to reject) the subpoena, but it shows a willingness to cut back on the third party doctrine. The GPS tracker case also had some commentary suggesting a limit to the third party doctrine, but it was ultimately decided based on the physical intrusion of the device.
[1] Alternet's very negative take on the issue: http://www.alternet.org/8-ways-police-can-spy-you-without-wa...
[2] http://www.politico.com/story/2015/06/hotel-guest-list-priva...