Facebook and Interpersonal Privacy: Why the Third Party Doctrine Should Not Apply

Abstract

Do communications over social networking sites such as Facebook merit Fourth Amendment protection? The Supreme Court has not directly answered this question and lower courts are not in agreement. The hurdle is the Third Party Doctrine, which states that a person does not have a reasonable expectation of privacy in any communication voluntarily disclosed to a person or entity. All Internet communications are stored on third party servers or Internet service providers, and thus would seemingly lose Fourth Amendment protection. Numerous scholars have weighed in on the issue—analyzing the nature of the communication or the entity to which the information is disclosed—in an effort to show that these communications continue to merit Fourth Amendment protection. These scholars, however, have largely ignored the overall effect of communications over social networking sites such as Facebook. This Article steps outside traditional Fourth Amendment scholarship and relies on the concept of interpersonal privacy rights as a way to protect communications over social networking platforms. Because social scientists have recognized that these relationships share the same qualitative structure and can be just as “real” as their face-to-face counterparts, this Article makes the argument that the concept of interpersonal privacy should apply to social networking relationships over the Internet. This analysis provides a new way to apply the reasonable expectation of privacy test under the Fourth Amendment—one that avoids the common pitfalls associated with the Third Party Doctrine.