Notice and Standing in the Fourth Amendment: Searches of Personal Data

In at least two recent cases, courts have rejected service providers’ capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular third-party litigant could not. In the situations presented by the recent cases, by contrast, the service provider was the only source of possible challenge—at least for some meaningful period of time. In both cases, the searches were done pursuant to a warrant issued in accordance with the Stored Communications Act (SCA). Because the government proceeded by warrant, the government was not required to give notice to the target of the search. The warrants were also accompanied by no-notice orders, meaning that the provider was barred from telling anyone, including the target of the search, that his or her data was being sought by the government—in some cases indefinitely. The use of such no-notice warrants served on third-party providers is an increasingly common investigatory tool, wrought by the changes in the way personal information is stored and managed in the digital age. Its use presents a significant shift in how investigations are carried out. It relies on a third-party intermediary between the police and the citizenry to gather information about persons of interest. It makes the searches that are occurring much more indirect and less visible. And it means that individuals are a lot less likely to know—and thus have an opportunity to object—if and when their personal information is being sought and collected by law enforcement officials. This Article examines what has changed; why it matters; and the implications for the Fourth Amendment. Ultimately, this Article makes the case for notice and revisions to standing doctrine as an essential to protecting Fourth Amendment interests and as good policy