March 12, 2021 Articles

Privacy for Sale? The Third-Party Doctrine in the Digital Age

Can law enforcement avoid the strictures of the Fourth Amendment?

By Robert Koch
DHS has acknowledged that it is buying access to individuals’ cellular data without a warrant.

DHS has acknowledged that it is buying access to individuals’ cellular data without a warrant.

Pexels | Adrianna Calvo

Coming soon to an appellate court near you: Can law enforcement avoid the strictures of the Fourth Amendment by purchasing cell phone location data from a commercial database rather than requesting the data from cell service providers? As of December 2020, the federal government believes that the answer is yes. The legality of this practice likely turns on whether, and to what extent, the U.S. Supreme Court’s third-party doctrine applies to data privacy in the digital age. 

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