Third Party Booz(e)

In Volokh Conspiracy’s new digs at the WaPo, former DHS Assistant Secretary Stewart Baker pushes back on Georgetown Professor Randy Barnett’s call to end the Third Party doctrine in truly remarkable terms.

Randy’s solution to that problem is to overrule a line of Supreme Court cases (Smith v. Maryland) holding that no one has a reasonable expectation of privacy in information they’ve disclosed to a third party. With Smith v. Maryland set aside, the government would need a search warrant to see the metadata.

Overruling Supreme Court precedent is a law professor’s prerogative, but the rest of us don’t have to go along. And in fact the Smith v. Maryland doctrine makes sense, especially compared to Randy’s solution. We all learned no later than the third grade that secrets shared with another are not really secrets. They can be revealed at times and in ways we never expected. It hurts, but it’s a fact of life.

Randy’s solution is a fiction; he wants the courts to deny the facts of life and pretend that we still control information we willingly gave away. [my emphasis]

“We all learned no later than the third grade,” this Snowden critic says, “that secrets shared with another are not really secrets.”

Such secrets “can be revealed at times and in ways we never expected,” Baker warns.

“The facts of life,” prove that we do not “still control information we willingly gave away.”

Baker argues that the Third Party doctrine arises not as a matter of law, but as a matter of fact, the facts of life, that no entity that shares information with another entity can claim that information is secret.

The NSA, of course, willingly gives away information all the time. Huge chunks of that data go to Booz Allen Hamilton, the contractor Snowden worked for. Equally large chunks go to GCHQ. Chunks of that data go to Lockheed and SAIC and a slew of other contractors.

According to Stewart Baker’s facts of life, the NSA has no business expecting this data to remain secret. None. Believing such data is secret defies common third grade logic and the facts of life.

Now that a big defender of the NSA has made the case that the NSA, too, is subject to the Third Party doctrine, perhaps we can move forward on giving the Third Grade treatment to all of their secret programs so we can debate them like adults?

11 replies
  1. John Thacker says:

    I also look forward to Stewart Baker’s article calling for an end to spousal privilege and attorney-client privilege, since obviously Third Graders can see that those secrets aren’t confidential either.

  2. John Thacker says:

    I think he’d make the case that the NSA (and perhaps the government in general) is authorized to look at the data that the NSA has shared with contractors. The Third Party Doctrine only says that things aren’t private with respect to the government (and the Fourth Amendment); I don’t think it gives private citizens (or corporations) the right to demand your data in general.

  3. emptywheel says:

    @John Thacker: It’s not about rights. As he describes it’s about facts of life, facts that exist prior to law. So in his model, NSA has no more protection from the Third Grader’s third party doctrine than we do.

    I’ll grant you that’s not how real life works. But that’s why changing the law is, in fact, a viable option.

  4. What Constitution? says:

    So the price we pay for living in modern society is the complete loss of any expectation of privacy? That’s seriously the conclusion this guy is so condescendingly insisting is “obvious”? Wonder what Jamie Dimon thinks about this.

    There is, has always been, and always will be a difference between what the government can do and what the Fourth Amendment provides the government may not do. Nobody at NSA respects this and here’s Stewart Baker castigating people who can appreciate the distinction. To try to draw that line by declaring that nobody possesses any expectation of privacy in anything that the government can access if it tries is appalling — but it is in fact the principle being used by the government here, and Stewart Baker is just stating the proposition in its plainest terms yet.

  5. FluffytheObeseCat says:

    “Nobody at NSA respects………”

    I think underneath all the daily sophistry this is the issue. Profound lack of respect for the average citizen is the damp sewage that all these ideas rest on. Both within the agency, within its partner letter agencies, and (most of all) among their think tanky, policy wanky apologists.

  6. Saul Tannenbaum says:

    I’m more amused by this:

    It would also take away an investigative tool that has been used by law enforcement more than a million times a year, and for nearly a century, without as yet producing a totalitarian American state.

    Because we’ve had the dragnet for a century?

  7. Anonsters says:

    VC’s move to WaPo is the worst idea they’ve ever had, sadly.

    That said, Stewart Baker is a hack, and he’s no more than that. Pretty much everything I’ve ever seen him write causes me to facepalm.

  8. steve says:

    I read Baker’s post, and Barnett’s the day before. I had to go back and read Barnett again after reading Baker because I was struck by this paragraph Baker wrote:

    His solution is to leave the metadata in the hands of the phone company. But really, what good would that do? Suppose that, as Randy fears, Congress wakes up one day and decides to use phone metadata to suppress dissent and gun ownership across America. The fact that the data is stored in four or five phone companies’ databases rather than NSA’s will forestall the Dark Night of Fascism for, oh, about 90 minutes. For the sake of that speedbump, we should give up our ability to identify cross-border terror plots?

    OK, that’s pretty incoherent. And the answer to the question is of course “yes.”

    But it also struck me that this paragraph was putting words in Barnett’s post that were not a part of the original. I initially read Barnett as saying, the government should not have access to the data, full stop.

    On second read, the 2nd-to-last paragraph of Barnett can be read to argue that allowing Sprint to keep a call records database is preferable to the NSA keeping the records. But I still think a more coherent reading, in light of Barnett’s comments about gun registration, is that it would be even more preferable if the database did not exist at all.

  9. earlofhuntingdon says:

    Two people can keep a secret, so long as one of them is dead: old Russian proverb.

    As you nicely point out, a government secret, whether Margaret Thatcher’s memo to silence the author of Spy Catcher, or Mr. Obama’s order to send the drones after you, may be secrets to most of us, but they still involve dozens or even hundreds of people.

    It used to take more than a dozen people for the British PM to send out a single, one-page, secret memo: aides, typists, reviewers, handlers, recipients, the PM. It can take quite a few people to mount a drone attack. Drones, each with their own physical and virtual team, often hunt in packs, like WWII German submarines. Some secure widening arcs of territory over a target area or serve as back-up, while another drone fires its missile, observed by still others.

    The point is that “secrets” have populations that know them. The government spends much of its time ensuring that the one population that does not know about them is the one that votes them into, but rarely out of, office.

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