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I agree we need a formal right to privacy in the form of a constitutional amendment rather than expecting justices on the Supreme Court to discover one in the 'penumbra' of other amendments; rulemaking should not take place in the shaodws.

A problem is that the Constitution has become the secular equivalent of a religious document as a result of the US culture wars, and is now referenced in dogmatic rather than pragmatic fashion. As a result, any politician that goes on the record in favor of a constitutional overhaul is denounced as a tools of shadowy political interests; thus the political fringe have become rabid defenders of the constitutional status quo by piling on to frustrate any efforts at reform.

The constitution was meant to be a living document. That is why it is amenable.

Also the idea that the framers could have seen anything like digital data collection is preposterous. Just because they had records doesn't mean they had any sort of access to the monitoring of your documents like we do today. The scale just want there.

There is an episode on true detective where one of the detectives goes through old case files. He has stacks of then and has to search them onelaw at a time. Compare that to a key word search or a elastic search.

Could the third party law apply to Dropbox or Google drive. Those are my documents, but stored by a third party. I sure hope warrants are needed for officers to go through my files on Google servers.

We need to look at the constitution with new eyes and re work it for a digital age.

Sorry for any Grammer issues I'm on my phone.

So amend it. Don't create a privacy right out of whole cloth. Respect for a court's authority comes from the premise that they're at least somewhat neutral arbiters of the words on the page. When legal interpretations become divorced from the text, that undermines the legitimacy of the courts.

Re: Google docs. Third party doctrine definitely should apply. If a Google engineer doesn't need a warrant or your permission to dig through your files on Google's servers, they should be fair game for a subpoena compelling them to turn over those documents. No different than how subpoenas can compel accountants to disclosure financial documents pertaining to their clients.

>Re: Google docs. Third party doctrine definitely should apply. If a Google engineer doesn't need a warrant or your permission to dig through your files on Google's servers, they should be fair game for a subpoena compelling them to turn over those documents.

Well, individual engineers working for Google can't access the files of customers, partly because of incidents in the past where Google employees abused this access. Does that alter how the law should treat them?

It is completely outdated. Everybody today stores a very large amount of a their "papers and effects" online, storage that is provided by third parties. The transfer of those papers and effects brings more, unknown, third parties into the loop. Literally nobody who is not in some way literate in technology and law believes that, when they send an email to their lawyer, they have made it public.

The law needs to reflect society's expectations because most people are not criminals by the default of having laws reflect what is normal in society. Break that, and you end up with people not caring about any laws ("in for a penny, in for a pound", and all that). In this case, the Third Party Doctrine fails miserably (but then, so do a lot of other laws).

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

-- Ninth Amendment to the Constitution

The Third-Party Doctrine dates back to the time of the framers of the Constitution. Not merely the idea that there are third parties that have searchable documents, but the Constitutionality of the resultant searches.

How does the Third-Party Doctrine date back to the framers? I'm pretty sure it wasn't coined until the 60s, but are there court cases from earlier than that?

I'm trying to track down the case that made me think that and starting to think I'm crazy. Still looking!

It's a little weird because in '67, the court redefined the 4th around the idea of expectation of privacy (Katz), and Miller and Smith followed from that redefinition. So you might have happened across something relevant under the previous scheme, like Boyd in 1886.

It was a customs search case from the turn of the 19th century, but now I'm wondering if I got my wires crossed between that and border search.

Probably. Border has a lot more from the original congress, and more also about customs since that was one of the original boarder exceptions.

Whether or not that turns out to be true, I still don't care for Rayiner's argument. Attorney-client privilege is also older than the Constitution, and the framers didn't see fit to mention it here either. I think their intent was to get the broad outlines right and let future generations hash out such details.

In keeping with that intent, the phrase "their papers and effects" is not precisely defined. I think it's up to us to hash out the appropriate meaning for our day and age. Pace Rayiner, I don't think it's at all unreasonable to imagine that that phrase was not necessarily intended to encompass only papers and effects that happen to be within one's house.

Attorney-client privilege isn't a Constitutional right, it's just an evidentiary privilege. And it can be lost by disclosure to third parties. Moreover, you're glossing over the fact that much of the information held by third parties doesn't fit within any conception of "your papers and effects." Even if we assume that your Google Docs are covered, what about information like your facebook friends? Those database records linking you to other facebook users aren't your documents, they're Facebook's.

Sure, but if the "right to privacy" doesn't come from the 4th amendment, where does it come from? The 9th amendment says that the Bill of Rights is not the only source of rights. But it is not by itself a source of rights.

> I disagree that third party doctrine is outdated, as the article states.

I agree. It isn't outdated, it's just wrong - and it's been wrong all along.

> they could have written the text that way. They didn't.

Most likely because it seemed self-evident to them. Keep in mind, the Framers, as brilliant as they were, were hardly perfect, and their language has been ambiguous in more than one place. In fact, you could argue that the Constitution is riddled with holes and contradictions. Look at the language around the 2nd Amendment. Look at how their is an enumerated powers clause, but also a "necessary and reasonable" clause, and all the consternation that has caused. Heck, consider the 3/5's Compromise, which does not exactly show the Founders in terribly good light.