Nicole Plante (Yale Law School) has posted Find My Friends, Lose My Privacy? Responding to Third-Party Doctrine's Failure in the Digital Age on SSRN. Here is the abstract:
This Note examines the application of third-party doctrine to location data and argues that the doctrine, as it currently stands, is unworkable in the modern digital era. Third-party doctrine holds that individuals forfeit Fourth Amendment protections when they voluntarily and knowingly share information with third parties, such as map or social media applications. However, individuals today routinely share sensitive location data with third parties, often without full awareness or meaningful consent. The Supreme Court acknowledged this challenge in Carpenter v. United States, carving out an exception for location information collected by cell towers, but failing to provide a clear framework for lower courts to apply.
This lack of guidance has resulted in a circuit split between the Fourth and Fifth Circuits, each interpreting Carpenter to reach opposite conclusions on whether location data is voluntarily shared. This circuit split highlights the challenge in applying third-party doctrine to location data and underscores the need for a new approach.
To resolve this issue, this Note proposes the Purpose-Sensitivity approach, a test that hinges Fourth Amendment protections on (1) whether the individual's purpose in sharing their data was to broadly share it to the public and (2) whether the data does or could contain sensitive information. This approach is both informed by the circuit courts' reasoning and in line with Fourth Amendment jurisprudence, ensuring a more consistent and constitutionally sound application of third-party doctrine to location data. By refining the doctrine, this Note offers a solution that better balances individual privacy rights with law enforcement's interests in the digital age.
An interesting student note.