The Data Question: Should the Third-Party Records Doctrine Be Revisited?
If a suspected thief has left written records of his crime in a friend’s desk, can the police simply subpoena the friend for the records in the desk or should that be treated as a search of the suspect’s property?
That question is at the heart of the “third-party records doctrine,” which has provided guidelines for criminal investigations since the late 1970s. In essence, the doctrine holds that information lawfully held by many third parties is treated differently from information held by the suspect himself. It can be obtained by subpoenaing the third party, by securing the third party’s consent or by any other means of legal discovery; the suspect has no role in the matter, and no search warrant is required.
