This Article argues that federal courts should seize the opportunity presented by the Snowden leaks to reexamine the continued vitality of the current third-party disclosure doctrine in Fourth Amendment jurisprudence. Specifically, this Article argues that Smith v. Maryland simply cannot continue to act as the “North Star” for judges navigating the “Fourth Amendment waters” of the digital age, and that instead, Smith should apply more narrowly in the digital age. In so arguing, this Article advocates that courts apply a modified, twostep test to evaluating third-party disclosures rather than applying the traditional binary rubric that courts have drawn from Smith and United States v. Miller—i.e., if information is disclosed, that information is unprotected. Thus, this Article suggests that courts ask, first, what individuals reasonably expect the scope of their disclosure to be and, second, whether a particular surveillance program is capable of revealing information beyond what those individuals reasonably expected to reveal. If the technology reveals information beyond that which individuals reasonably expected to reveal, then the use of such technology implicates the Fourth Amendment.
Timothy J. Geverd, Bulk Telephony Metadata Collection and the Fourth Amendment: The Case For Revisiting the Third-Party Disclosure Doctrine in the Digital Age, 31 J. Marshall J. Info. Tech. & Privacy L. 191 (2014)