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When a Search is Not a Search: The Third Party Doctrine

A judge's gavel resting on a block over a dark background representing how one can benefit from calling a Portland criminal defense attorney.

One of the trickier things about the Fourth Amendment’s prohibition of “unreasonable searches and seizures” is whether an act by the government actually constitutes a “search” or a “seizure.” If law enforcement finds evidence of a crime, but did not technically “search” for it, then the Fourth Amendment doesn’t protect you from their conduct.

An important part of this concept is called the third party doctrine.

The Third Party Doctrine

In the course of your day-to-day life, you give other people certain bits and pieces of information about you. Your bank has information about how much money you have in your account, and when it was put there, while your phone company has records of who you called, when, and how long you talked.

All of this information, you voluntarily give to someone else, often in the form of a contract. Typically, you give permission to collect this information in a standard form that you signed before you open your bank account, or in the contract you signed when you bought your cell phone.

However, if police are searching for evidence of a crime, this information can be crucial. For example, if you’re being investigated for a white collar crime, like fraud, then your phone records can be an important piece of evidence.

Obtaining Evidence Held By a Third Party Is Not Considered a “Search”

Because you have already voluntarily granted someone else – the third party – permission to collect your information, courts have decided that you no longer have a reasonable expectation that this information be kept private. Because there is no longer this expectation, therefore, courts have decided that police do not conduct a “search” when they obtain it from that third party. Because it’s not a “search,” therefore, police do not intrude on your Fourth Amendment rights when they gather this information from the third party.

The Implications of the Third Party Doctrine

The implications of the third party doctrine are not small. In the age of the internet and social media, we give lots of other companies and organizations a lot of information about ourselves. Many websites have terms of use that you agree to simply by using their site, which allow that site to put cookies in your browser to track your internet usage.

Criminal Defense Attorney William T. Bly

The third party doctrine gives police and law enforcement a scary amount of access to your personal information, which they can then use to investigate you for crimes in which you are a suspect. In our next few blog posts, we’ll detail how the third party doctrine lets police search through your cell phone records, internet history, and even your garbage without having to worry about your Fourth Amendment rights because, technically, they’re not conducting a “search.”

William T. Bly is a criminal defense attorney in the state of Maine. If you’re being investigated for a crime, or are currently being investigated for one, contact the law office of William T. Bly online or at (207) 571-8146.


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