Looking Back to Look Forward: Reexamining the Application of the Third-Party Doctrine to Conveyed Papers

third-party doctrine maintains that individuals lose Fourth protection for information knowingly revealed to third parties. Applying this rule, courts have held that individuals lack Fourth protection for, among other things, numbers dialed on a phone (1) and trash left in a sealed bag on their curb. (2) Many scholars criticize this doctrine, describing as contrary to purposes underlying Fourth Amendment (3) and one of most serious threats to privacy in digital age. (4) In January of 2012, Justice Sotomayor wrote, it may be necessary to reconsider premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to digital age.... (5) Supreme Court's recent opinion in United States v. Jones (6) provides fresh grounds for reconsideration of third-party doctrine as applied to papers and their digital equivalents. In Jones, Court clarified scope of inquiry demanded by Fourth Amendment. majority repudiated notion that Fourth protections rise or fall under reasonable expectation of privacy formulation first articulated in 1967 case of Katz v. United States. (7) Instead, Court held that Katz line of reasonable expectation cases supplemented, rather than supplanted, exclusively property-based approach of early Fourth cases. (8) Jones majority thus found that a search involving trespass would be unlawful, even if an individual had no reasonable expectation of privacy in information. In reaching this holding, Jones Court reaffirmed its duty to 'assur[e] preservation of that degree of privacy against government that existed when Fourth was adopted. (9) Court emphasized that a Fourth analysis is incomplete without examination of early search and seizure precedent. (10) Jones's emphasis on preserving historic scope of Fourth protection stands in tension with Court's practice of applying third-party doctrine to papers and their digital equivalents. This Note explores roots of this practice and highlights how this application represents a break from early Fourth precedent. This Note then presents a line of cases that suggests individuals do not necessarily surrender Fourth protection when they convey papers to third parties. This Note concludes with argument that, pursuant to Jones, Court must honor early Fourth precedents and provide protection for conveyed papers and their digital equivalents. I. CONFLICTING PRINCIPLES: THE PROPERTY-BASED AND EXPECTATIONS-BASED LINES OF FOURTH AMENDMENT JURISPRUDENCE Fourth of United States Constitution reads, The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... (11) Drafters included this amendment in Bill of Rights in response to British general warrants and colonial writs of assistance that empowered revenue officers to search at will for smuggled goods. (12) In February 1761, James Otis, Attorney General in colony of Massachusetts, (13) described writs of assistance as the worst instrument[s] of arbitrary power, most destructive of English liberty and fundamental principles of law, that ever was found in an English law-book because writs placed the liberty of every man in hands of every petty officer. (14) Fourth of United States Constitution mirrors language of Massachusetts Declaration of Rights of 1765 and same state's Constitution of 1780. (15) Following enactment of Bill of Rights, courts developed two divergent lines of Fourth jurisprudence. (16) first--reflecting a property-based conception of Fourth rights--dominated Court's understanding until latter half of twentieth century. …