Of Third-Party Bathwater: How to Throw Out the Third-Party Doctrine While Preserving Government's Ability to Use Secret Agents

Authors

Amy L. Peikoff

Document Type

Article

Abstract

(Excerpt)

In Part I of this Article, I discuss the third-party doctrine, including its history, the types of cases to which it has been applied, and arguments in favor of and against it, with particular focus on Orin Kerr's defense of the doctrine. In Part II, I propose an alternative-and, I think, better-way of dealing with cases typically thought to fall under this doctrine. My proposal, as we will see, rests upon the model for the legal protection of privacy that I have elucidated and defended in prior articles: a model based on our rights to property and contract. Finally, in Part III, I enlist the help of the common law of contract to address an objection to my proposal, in hopes of improving its appeal to the reader.