In December of 2008, the Delaware State police submitted a warrant application to search Bradley’s medical office. The application was denied. In December of 2009, the police submitted a second application that was granted. The differences between those two applications are revealing, and demonstrate that police will often do better to leave out unnecessary boilerplate regarding computers than to cloud an otherwise straightforward application. The execution of the issued warrant is also revealing, and troubling, as is the judicial decision denying Bradley’s motion to suppress. The execution demonstrates a police attitude that is dismissive, and that could clearly benefit from better training. The judicial response, refusing to exclude evidence that incriminates an evil man, leaves little impetus for that training to occur and demonstrates the danger of applying the doctrine of inevitable discovery when the police fail to obtain a proper warrant.

Unlike that problematic physical search, the initial computer forensics search in the Bradley investigation could not have been more straightforward. But that is rare. It can be time consuming and perhaps even difficult to locate incriminating evidence stored on a computer, and this is where we can learn from Chief Judge Kozinski. In 2004, sitting by designation as a trial judge on the Central District of California, Kozinski was confronted with a defendant’s contention that because a computer contains so much private information, a search warrant should restrict a forensics examiner’s search methodology. Kozinski was unsympathetic. He criticized and rejected the defendant’s claim. But in 2008, Kozinski had a computer problem of his own. His home computer had a publicly accessible partition, and it was found to contain some interesting images, perhaps most memorable among them being naked women painted as cows. Lo and behold, in 2009, Kozinski authored a much more privacy protective decision for the en banc Ninth Circuit. Although that decision was relegated to a concurrence by his court in 2010, Kozinski’s renewed zeal for computer privacy demonstrates a genuine issue. At the same time, the court’s ultimate rejection of his solution, along with its rejection in sister circuits and other courts, correctly recognizes that it will require novel technologies before magistrates – and district courts ex post – can very meaningfully limit the execution of computer searches.

After briefly describing the federal third-party doctrine, the Article describes two technologies that demonstrate its significance, cell phone location tracking and data mining. The Article then organizes and describes the constitutional jurisprudence of all fifty states. This study reveals that eleven states reject the federal third-party doctrine and ten others have given some reason to believe they might reject it. When combined with the eleven other states that have diverged from the Fourth Amendment on some substantive issue, this is an impressive tally. Not only can this analysis of diverging states be used to encourage others to adopt more protective doctrines, but ideally it can be used to influence the United States Supreme Court. The author favors a broad definition of search restricted by a totality-based consideration of reasonableness, which would require that courts devise a spectrum of protections for different types of third-party information.

But it is one thing to urge that some third-party information should by protected, and quite another to articulate how and when different information should be accessible to police. To answer this question it makes sense to turn to the most robust source of practical applications we have, namely those states that have diverged from the federal doctrine. Although state courts often employ a gestalt jurisprudence that defies precise delineation, an analysis of many cases reveals a set of relevant factors that would seem to be consistently useful in determining whether law enforcement access should be restricted, and if so in what manner. What such analysis does not reveal is a tidy system of bright-line delineations, seemingly at odds with two thoughtful alternatives to the current federal doctrine proposed by Daniel Solove and Christopher Slobogin.

Part I of this article frames the discussion via recent events. The realization that the National Security Agency has been parsing phone conversations, dialing records, and banking records since the terrorist attacks of September 11, 2001, demonstrates that the third-party doctrine is very much a contemporary concern. The decision last term in Georgia v. Randolph demonstrates that five members of the Supreme Court are willing to depart from the doctrine, at least in the context of the home. Part II then utilizes the existing state (and to a limited extent federal) jurisprudence to determine and explain what factors are relevant in determining whether to constitutionally restrict law enforcement access. This yields an uncertain calculus that also logically challenges the essentially unrestricted ability of law enforcement to probe the recollection of a recalcitrant witness. In Part III I compare my approach to the seemingly more administrable proposals of Professors Solove and Slobogin. I conclude with a tentative defense of the current multi-faceted - and therefore necessarily uncertain - jurisprudence. Although its administrability is imperfect, it more appropriately distinguishes between and among different types and amounts of third-party information.