Congressional Research Service 19
use” of the telephone, which for “many has become a personal or professional necessity, he
cannot help but accept the risk of surveillance. It is idle to speak of ‘assuming’ risks in contexts
where, as a practical matter, individuals have no realistic alternative.”
144
One commentator has
argued that unlike the undercover agent cases, where refusing to talk to a particular individual is a
“realistic option,” refusing to get medical treatment or an education would lead to an
“unproductive” and “possibly much foreshortened existence.”
145
The third central argument against the third-party doctrine challenges the assertion that people
“assume the risk” when handing information over to third parties. People do not assume legal
risks as a matter of pure deduction, the argument goes, “but assume only those risks of
unregulated government intrusion that the courts tell us we have to assume.”
146
Dissenting in
White, Justice Harlan expressed concern about the process by which courts determine how much
privacy protection people should expect and will receive. He notes that people’s expectations of
privacy and the risks they assume are “reflections” of the laws handed down by courts or
legislatures. Because it is the “task of the law to form and project, as well as mirror or reflect,”
Justice Harlan instructs, “we should not, as judges, merely recite the expectations and risks
without examining the desirability of saddling them upon society.”
147
Instead of allowing “the
substitution of words for analysis,” courts should assess “the nature of a particular practice and
the likely extent of its impact on the individual’s sense of security balanced against the utility of
the conduct as a technique of law enforcement.”
148
In other words, rather than simply applying
the phrase “assumption of the risk” in each new legal context, Justice Harlan suggested that
courts should look anew at each surveillance practice and determine its actual impact on the
individual’s privacy interests.
149
One commentator has suggested a similar approach in that the
government should not have “practically unrestricted access” to people’s records, or, on the
flipside, that probable cause must be required for every request of documents. Instead, he argues
that the level of protection should depend on the nature of the documents requested.
150
For
example, certain types of records, including public records, may not be entitled to the same
protection as others, such as medical or financial records.
151
144
Smith, 442 U.S. at 750 (Marshall, J., dissenting).
145
Slobogin, supra note 7, at 156.
146
Id. at 157; see also Stephen E. Henderson, The Timely Demise of the Fourth Amendment Third Party Doctrine, 96 I
OWA
L.
R
EV
.
B
ULL
. 39, 47 (“It is the law that defines what risks we do and do not assume.”) .
147
White, 401 U.S. at 786 (Harlan, J., concurring). A similar, and more general, criticism has been posed against the
Katz ‘s reasonable expectation of privacy test. Some have argued that it in determining which expectations of privacy
are reasonable, judges are merely imposing their own views of privacy on society. See United States v. Jones, 132 S.
Ct. 945, 962 (2012) (Alito, J., concurring) (“The Katz expectation-of-privacy test ... is not without its own difficulties.
It involves a degree of circularity, and judges are apt to confuse their own expectations of privacy with those of the
hypothetical reasonable person to which the Katz test looks.”); Minnesota v. Carter, 525 U.S. 83, 97 (1998) (Scalia, J.,
concurring) (“In my view, the only thing the past three decades have established about the Katz test ... is that,
unsurprisingly, those ‘actual (subjective) expectation[s] of privacy’ ‘that society is prepared to recognize as
‘reasonable,’’ bear an uncanny resemblance to those expectations of privacy that this Court considers reasonable.”).
148
United States v. White, 401 U.S. 745, 786 (1971) (Harlan, J., concurring).
149
See Catherine Hancock, Warrants for Wearing a Wire: Fourth Amendment Privacy and Justice Harlan’s Dissent in
United States v. White, 79 M
ISS
.
L.
J. 35 (2009). Similar to Justice Harlan’s comments, the majority in Smith v.
Maryland observed that if people’s subjective expectations of privacy becomes conditioned by government practices
that were “alien to well-recognized Fourth Amendment freedoms,” that a “normative inquiry would be proper” in
determining what constituted a “legitimate expectation of privacy.” Smith, 442 U.S. at 740-41 n.5.
150
Slobogin, supra note 7, at 157.
151
Slobogin, supra note 7, at 157.