Supreme Court urged to restore Fourth Amendment protections to data shared with ‘third party’ service providers
When you protect property, you protect privacy. That was the message Pacific Legal Foundation attorneys conveyed in one of eight amicus briefs filed last week in support of James Harper in his petition for a writ of certiorari to the United States Supreme Court in his case, Harper v. O’Donnell.
Harper brought his case after discovering that he was one of over 14,000 customers of cryptocurrency exchange Coinbase whose transaction records were obtained by the Internal Revenue Service without a warrant. Coinbase’s agreement with its customers made clear that the records, even though created and retained by Coinbase, belonged to the customers. Moreover, Coinbase resisted the first version of the IRS’s suspicionless, dragnet subpoena, which would have required Coinbase to hand over even more data, and to do so for all U.S. customers of the exchange. It only later complied with a scaled back version of the subpoena.
The PLF brief argues that the First Circuit, which held that the “third-party doctrine” applied to the information Harper and other customers shared with Coinbase, excluding the records from Fourth Amendment protection, failed to correctly interpret and apply the limitations of the doctrine established in the 2018 case, Carpenter v. United States. Further, the brief presents the history of the third-party doctrine and interprets that history through the lens of the common law of contract, arguing that the doctrine should be returned to the scope it enjoyed before it was drastically expanded in the 1970s cases, Smith v. Maryland and United States v. Miller.
Law360 reported that the Supreme Court has asked the federal government to weigh in on the matter, increasing speculation that the Court will grant Harper a writ of certiorari and reconsider the scope of the third-party doctrine. Its coverage, which surveyed all the amicus briefs submitted in support of Harper’s petition, featured a summary of and select quotations from PLF’s brief.
X, the only private company among the supporters, said it collects and stores “multiple classes of sensitive user data which could be the subject of broad, suspicionless subpoenas by law enforcement or other government agencies.”
“X believes contractual promises, like those it makes to its users in its terms of service, should be recognized as relevant to the protection their data receives under the Fourth Amendment,” the company said. Neither Coinbase nor X should “be coerced into helping governments undermine their users’ privacy and property rights through an end run around the Fourth Amendment.”
The Financial Times published a story more narrowly focused on our brief, quoting a key passage explicating the common-law analysis of the third-party doctrine’s origins in mid-twentieth “secret agent cases,” and the implications of that analysis for Harper’s case.
“If Tony Soprano makes an ‘arrangement’ with a ‘business associate’, any collateral promises are unenforceable, including promises to keep it a secret,” X’s lawyers wrote, referring to the mob boss in the HBO TV drama The Sopranos.
“But terms of service agreements between users and Coinbase or X Corp would not be deemed illegal contracts, merely because some users . . . are otherwise properly subject to government investigation.”
The Crypto Times also reported on the brief’s filing, noting that the timing is significant because “the U.S. government is considering expanding its surveillance policies. The Department of Homeland Security recently proposed new rules that would allow authorities to collect more social media data from visa applicants and residents, raising further privacy concerns.”
We are pleased with the reception the brief has received so far and are hopeful that the Court asking the government to respond to Harper’s petition means it plans to grant review. Stay tuned!
