A New Third-Party Doctrine: The Telephone Metadata Program and Carpenter v. United States

This Note will answer the question of whether bulk metadata collection is still defensible under the third-party doctrine. It ultimately concludes that Chief Justice Roberts incorrectly asserted that Carpenter v. United States will not impact the application of the third-party doctrine to collection techniques involving national security, and that the warrantless collection of bulk metadata under the Foreign Intelligence Surveillance Act is no longer defensible by the third-party doctrine. In Section I.A, this Note discusses traditional Fourth Amendment jurisprudence in Katz v. United States and the establishment of the third-party doctrine as a bright-line rule in United States v. Miller and Smith v. Maryland. This Note also provides background on the Court’s hint at a coming change in the third-party doctrine in United States v. Jones. In Section I.B, this Note explains the Court’s decision in Carpenter v. United States before laying out the new balancing test in Section I.C. In Part II, this Note describes the issue at hand by discussing the controversy surrounding bulk metadata collection under the Foreign Intelligence Surveillance Act’s telephone metadata program, as well as the open question remaining of whether the government’s collection under that program is defensible by the third-party doctrine. In Part III, this Note applies Carpenter’s new balancing test to the telephone metadata program and determines that, because individuals have a reasonable expectation of privacy in the metadata collected by the government under the telephone metadata program, and that because there is no voluntary exposure, the privacy interests at stake clearly outweigh the mere fact that information has been disclosed to wireless carriers. As such, the Note concludes that the telephone metadata program constitutes Fourth Amendment activity because the third-party doctrine no longer protects the government from defending warrantless searches. Section III.D also briefly discusses the implications of the findings under the new balancing test and suggests how courts will further evaluate the constitutionality of bulk metadata collection