A cognitive theory of the third-party doctrine and digital papers
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© 2018 Temple University. All Rights Reserved. For nearly 200 years, an individual's personal papers enjoyed near-absolute protection from government search and seizure. That is no longer the case. With the widespread adoption of cloud-based information processing and storage services, the third-party doctrine operates to effectively strip our digital papers of meaningful Fourth Amendment protections. This Article presents a new approach to reconciling current third-party doctrine with the technological realities of modern personal information processing. Our most sensitive data is now processed and stored on cloud-computing systems owned and operated by third parties. Although we may consider these services to be private and generally secure, the law does not currently require the government to obtain a warrant to access our stored information. The third-party doctrine creates a sweeping exception to the warrant requirement for any information exposed to a third party-even where that third party is an automated computing system rather than a human. As a result, our personal papers now receive no more protection than any other piece of potential evidence. In practical terms, they receive less. This ahistorical approach undermines the essential balance between an individual's interest in privacy and the public's interest in law enforcement. Many have identified and tried to rectify the privacy problems created by the shift to third-party cloud-computing systems, but it has proven difficult to articulate a limitation to the third-party doctrine that is both consistent with existing principles and feasible in practice. This Article begins with the intimate connection among freedom of thought, privacy of thought, and the longstanding enumeration of "papers" as a distinct object of Fourth Amendment protection. This historical understanding of the relationship between human thought and private papers, which prior generations recognized intuitively, now finds strong support in contemporary cognitive science. Modern models of human cognition reveal how papers serve as cognitive artifacts performing cognitive tasks. These models furnish a set of proxy characteristics for reliably singling out those personal papers whose protection would most likely serve constitutional values. The result is a coherent and workable method for bringing needed discipline to the third-party doctrine and restoring equilibrium to information privacy.
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