Did you know that the word “privacy” never once appears in the Constitution? So where does our expectation of privacy come from? The Fourth Amendment to the United States Constitution declares, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Our understanding of our expectation of privacy comes from how the Courts have interpreted this Amendment. But the Courts have not been as protective as one might have hoped. For example, let’s say you give the password to your email account to your significant other to whom you are not married, but with whom you have lived for over 10 years (known under the law as a friend because there is no marital privilege or relationship). You told him to keep it private and reveal it to no one. You are committed to each other and you don’t have any secrets. Well, that’s right. You don’t have any secrets. Because you just gave that password to your friend, the Courts have ruled you no longer have any reasonable expectation of privacy in that password.
Under the third-party doctrine, “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties . . . even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Smith v. Maryland, 442 U.S. 735, 743–44 (1979) (citing United States v. Miller, 425 U.S. 435, 442–44 (1976)).
Using the third-party doctrine, one military court in a recently published opinion, held that when a military member disclosed his Facebook password to another military member on a phone call that was monitored by law enforcement, the member lost any reasonable expectation of privacy in his password and the contents on his Facebook page. See United States v. Langhorne, ACM 39047, dated 5 December 2017 (AF. Ct. Crim. App.).
I personally think the Courts have not delved deep enough in their analysis to keep pace with the original intent of the Fourth Amendment and modern technology. For example, even if I were to agree with the Courts that one does not have a reasonable expectation of privacy in the password once it has been disclosed to another, I do not believe that the Government then has the right to use that password to look at all the information the password protects. I would go further in my analysis and argue that even if a person gives the PIN to the lock on his home’s front door (digital entry system), that does not give the Government the right to enter and search the person’s home. The Government may now know the code to enter his front door, but they still can’t enter the home to search the residence without a warrant. The same with the password to a social media site. The Government may have found the password, but because so much private information is contained on that site, perhaps even more than the private information that could be found in a person’s home, the Government should still need a warrant to enter the social media site.
Although that would be my argument, that is not the current state of the law. So be careful to whom you disclose passwords or other information you want to keep private. By telling someone else your secret, you may be surrendering any reasonable expectation of privacy you thought you had.
