Third-Party Doctrine and the Future of the Fourth Amendment in the Digital Age

With Independence Day approaching, Grits still laments this session's near-miss loss for the Fourth Amendment regarding warrants for cell-phone location data, legislation carried by state Rep. Bryan Hughes and state Senators Juan Hinojosa and Craig Estes that nearly passed as an amendment. This NY Times headline yesterday would have looked a lot better with Texas in the title than Montana, that's for sure.

The public faces increasing commercial pressure to utilize cell-phone location data that right now is not covered by Fourth Amendment protections under the Supreme Court's third party exception. But location data is only the spearpoint of the issue. To me, eventually the entire third-party doctrine spawned from the court's Smith and Miller cases in the '70s (see here for an example of an Obama apologist using those cases to justify the NSA gobbling up everyone's cell-phone metadata ) must be reconsidered in light of the advent of cloud computing in the digital age, as Justice Sonia Sotomayor rightly argued in US v. Jones. These were already going to be some of the biggest Fourth Amendment issues of the decade before anyone ever heard of Edward Snowden, though he certainly heightened their profile.

Approaching a holiday celebrating our freedoms, I am gratified the Lege offered its own contribution to the national debate over digital Fourth Amendment protections, making Texas the first state to require law enforcement to get warrants for cloud-based email and other content. Grits expects other states to follow our lead, just as other states are already following Montana's on cell phones. Maybe in 2015 the Texas Electronic Privacy Coalition can convince the Lege to pick up the cell-phone location data bill like a bowler picks up a spare. But it sure would have been nice to get both of them this time. Rep. Hughes and Co. were awfully close to have it peter out at the end.