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I just finished reviewing my crim outline, but there is one thing that I am having trouble with: how Smith (pen register case) and Miller (bank records case) affect Katz. If the Court heard Katz after those cases, couldn't the government argue that, because Katz voluntarily conveyed information to a third party (the person he called), then the third-party doctrine applies and he has no reasonable expectation of privacy? I feel like I'm missing something here, which is embarrassing because I thought that this would be one of the easier sections of the class when, in actuality, it's the one thing really throwing mee off right now.

May have just answered my own question. Could it be that, at the time of the wiretap, the information being conveyed had not yet been conveyed to a third party? In Smith, the phone company already had the numbers and, in Miller, the bank already had the information; in Katz, however, the contents of the communication had not been disclosed to a third party when the wiretap occurred.

I'll take a stab at your question.

The Katz test primarily looks to whether individuals have a reasonable expectation of privacy in a given circumstance. In Katz, the Court said that because "one who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world." Thus, Katz had a reasonable expectation of privacy in the content of his conversation via the telephone calls when they were placed inside the booth.

The third-party doctrine came along almost a decade later in Smith and is just a rule that says people who volunteer information to third parties (telephone companies, banks, internet companies) have no reasonable expectation of privacy in the information they convey. So you don't have a reasonable expectation in the phone numbers that you dial (Smith), but you do have a reasonable expectation in the contents of your conversations.

rsox5000 wrote:May have just answered my own question. Could it be that, at the time of the wiretap, the information being conveyed had not yet been conveyed to a third party? In Smith, the phone company already had the numbers and, in Miller, the bank already had the information; in Katz, however, the contents of the communication had not been disclosed to a third party when the wiretap occurred.

I think that in both Smith and Miller, an individual has no reasonable expectation of privacy in what they knowingly convey to another. When you dialed a phone number in the old days, you know the telephone company (and even a live operator) was using that information to manually route the call. (Smith) In Miller, the person was handing over the deposit slips with numbers on them, to my recollection. Thus, under Katz there is no expectation of privacy and a search does not occur when the government obtains this info.

The oral argument on Nov. 29, 2017 (Carpenter v. U.S.) might help as well.

Judgmental_Judy wrote:I'll take a stab at your question.

The Katz test primarily looks to whether individuals have a reasonable expectation of privacy in a given circumstance. In Katz, the Court said that because "one who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world." Thus, Katz had a reasonable expectation of privacy in the content of his conversation via the telephone calls when they were placed inside the booth.

The third-party doctrine came along almost a decade later in Smith and is just a rule that says people who volunteer information to third parties (telephone companies, banks, internet companies) have no reasonable expectation of privacy in the information they convey. So you don't have a reasonable expectation in the phone numbers that you dial (Smith), but you do have a reasonable expectation in the contents of your conversations.

This!

chichilee1992 wrote:The oral argument on Nov. 29, 2017 (Carpenter v. U.S.) might help as well.

FWIW, it looks like the third-party exception was a severely limited to the facts of Smith and Miller. And now as the SCOTUS becomes more right-leaning (so to speak) there is a chance they would explicitly overrule the third-party doctrine because it is wrong anyways.