The problem with Smith's third-party doctrine applied to the Internet

I strongly agree with Alex’s blogpost that U.S. v. Forrester is misguided. However, I differ slightly in my reasoning and would like to offer some elaboration and nuance.

I believe that we must understand why we might have a legitimate expectation of privacy in online activity but not in the pen-register case. For one, the Internet is technologically quite different from the third-party telephone switching equipment in Smith. A telephone number that has been dialed is electronically delivered in whole from one station to another. On the Internet, however, information is split up across various paths and delivered in bits; only the original sender and the intended recipient have access to the full information sent. Consequently, we probably have an expectation of privacy that we will be the only ones to have full access to this data. Additionally, our phone bills display all of the contacts that we have called, but our Internet bills do not list website ISPs or display email information. This information is not kept in the “regular course of business,” and so we have a greater expectation that it will not be disclosed. The fact that we employ passwords to access our Internet information also distinguishes it; we rarely use passwords to guard other forms of communication like the phone.

In addition, the very notion of third-party doctrine should be called into question when we have no personal choice but to reveal such information. Katz suggests that even “the public telephone has come to play [a critical role] in private communication”; it goes on to state that a person may “assume… [what] he utters into the mouthpiece will not be broadcast to the world.” Thus, even in environments where some exposure is inherent, we may maintain our privacy expectations if that exposure is unwillingly forced. If this privacy expectation didn’t exist, the government might be able to monitor all digital transmissions, since every electronic transmission is sent through numerous switching computers rather than from one person to another!

I also take issue with Alex’s assertion that IP addresses do not reveal content. Rather, I think that the IP address reveals a great deal of information about the person—and that’s precisely why it should be regulated. IP and email addresses may reveal contacts, interests, or other beliefs that a person wishes to remain private. Because this personal information clearly contains content, it is thus analogous to the telephone call itself rather than the dialed number in US v. Katz. Like the content of the telephone communication in Katz, this content deserves Fourth Amendment protection.

Thus, I believe that US v. Forrester creates a powerful threat when it comes to surveillance. Forrester suggests that the mere presence of a third-party Internet service provider precludes any internet security. It implies that the government can regulate absolutely anything online, including your password-protected Gmail account and your Facebook private messages. This is fundamentally at odds with our cultural values and our widespread understanding of Internet technology. If the third-party precedent is not changed, it threatens the future of the Internet itself.