third-party doctrine in Pennsylvania

2025Not long after DeJohn, this Court, in Commonwealth v. Melilli, 555 A.2d 1254 (Pa. 1989), addressed the second in the duo of the High Court’s third-party doctrine cases, Smith v. Maryland, 442 U.S. 735, 749 (1979), where the High Court held that installation of a pen register—a device used to collect a record of telephone numbers dialed by a particular telephone number—was not a Fourth Amendment search because callers voluntarily convey numerical information to the telephone company and expose that information in the ordinary course of business.

2025Not long after DeJohn, this Court, in Commonwealth v. Melilli, 555 A.2d 1254 (Pa. 1989), addressed the second in the duo of the High Court’s third-party doctrine cases, Smith v. Maryland, 442 U.S. 735, 749 (1979), where the High Court held that installation of a pen register—a device used to collect a record of telephone numbers dialed by a particular telephone number—was not a Fourth Amendment search because callers voluntarily convey numerical information to the telephone company and expose that information in the ordinary course of business.

2025This suggested to the Court that Jones had at least facial applicability, as both types of data are “detailed, encyclopedic, and effortlessly compiled.” 62 On the other hand, the Court explained, the third-party doctrine seemed to have little, if any, relevance in regard 58 Id. 59 Id. at 307 (discussing Jones). 60 Smith, 442 U.S. at 745. 61 Carpenter, 585 U.S. at 309 . 62 Id. [J-36A-2024, J-36B-2024 and J-36C-2024] - 16 to the collection of CSLI data.

2025This suggested to the Court that Jones had at least facial applicability, as both types of data are “detailed, encyclopedic, and effortlessly compiled.” 62 On the other hand, the Court explained, the third-party doctrine seemed to have little, if any, relevance in regard 58 Id. 59 Id. at 307 (discussing Jones). 60 Smith, 442 U.S. at 745. 61 Carpenter, 585 U.S. at 309 . 62 Id. [J-36A-2024, J-36B-2024 and J-36C-2024] - 16 to the collection of CSLI data.

2025However, I am not convinced that this conclusion is correct given the High Court’s decision in Carpenter, where it declined to extend the third-party doctrine to the collection of cell-site location data from an individual’s cell phone company based, in part, on its determination that “cell phones and the services they provide are ‘such a pervasive and insistent part of daily life’ that carrying one is indispensable to participation in modern society.” Carpenter v. United States, 585 U.S. 296, 315 (2018) (quoting Riley v. California, 573 U.S. 373 , 385 (2014)).

2025However, I am not convinced that this conclusion is correct given the High Court’s decision in Carpenter, where it declined to extend the third-party doctrine to the collection of cell-site location data from an individual’s cell phone company based, in part, on its determination that “cell phones and the services they provide are ‘such a pervasive and insistent part of daily life’ that carrying one is indispensable to participation in modern society.” Carpenter v. United States, 585 U.S. 296, 315 (2018) (quoting Riley v. California, 573 U.S. 373, 385 (2014)).

2025A consumer availing himself of the bank’s services necessarily had “take[n] the risk, in revealing his affairs to another, that the information [would] be conveyed by that person to the Government.” 38 33 Id. 34 425 U.S. 435 (1976). 35 442 U.S. 735 (1979). 36 Miller, 425 U.S. at 440 . 37 Id. at 442 . 38 Id. at 443 . [J-36A-2024, J-36B-2024 and J-36C-2024] - 11 The Court returned to the third-party doctrine three years later in Smith.

2025A consumer availing himself of the bank’s services necessarily had “take[n] the risk, in revealing his affairs to another, that the information [would] be conveyed by that person to the Government.” 38 33 Id. 34 425 U.S. 435 (1976). 35 442 U.S. 735 (1979). 36 Miller, 425 U.S. at 440 . 37 Id. at 442 . 38 Id. at 443 . [J-36A-2024, J-36B-2024 and J-36C-2024] - 11 The Court returned to the third-party doctrine three years later in Smith.

2025However, I am not convinced that this conclusion is correct given the High Court’s decision in Carpenter, where it declined to extend the third-party doctrine to the collection of cell-site location data from an individual’s cell phone company based, in part, on its determination that “cell phones and the services they provide are ‘such a pervasive and insistent part of daily life’ that carrying one is indispensable to participation in modern society.” Carpenter v. United States, 585 U.S. 296, 315 (2018) (quoting Riley v. California, 573 U.S. 373 , 385 (2014)).

2025However, I am not convinced that this conclusion is correct given the High Court’s decision in Carpenter, where it declined to extend the third-party doctrine to the collection of cell-site location data from an individual’s cell phone company based, in part, on its determination that “cell phones and the services they provide are ‘such a pervasive and insistent part of daily life’ that carrying one is indispensable to participation in modern society.” Carpenter v. United States, 585 U.S. 296, 315 (2018) (quoting Riley v. California, 573 U.S. 373, 385 (2014)).

2026See Commonwealth v. Pacheco, [] 263 A.3d 626 , 636 & n.10 ([Pa.] 2021).

2025The court explained that, “[b]y typing in his search query and pressing enter, [Kurtz] affirmatively turned over the contents of his search to Google, a third party, and voluntarily 6 Id. at 516, 536 . 7 Id. at 522 . 8 Id. at 520 (citing Commonwealth v. Kane, 210 A.3d 324, 330 (Pa. Super. 2019)). 9 Id. (citing Commonwealth v. Pacheco, 263 A.3d 626 , 636, 636 n.10 (Pa. 2021)). 10 Id. at 521 (collecting cases).

2025Consistent with that intention, we stated that “[t]elephone activities are largely of one piece, and efforts to create distinctions between numbers and conversational content are constitutionally untenable in our view.” Id. 14 Having approved of Beauford’s 13 The Beauford court relied on the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §§ 5701-5782, highlighting that it “allows wiretapping for police investigative purposes, but only after a strict showing of need by the attorney general or a district attorney before a Superior Court judge.” Beauford, 475 A.2d at 790 (citing

2025Consistent with that intention, we stated that “[t]elephone activities are largely of one piece, and efforts to create distinctions between numbers and conversational content are constitutionally untenable in our view.” Id. 14 Having approved of Beauford’s 13 The Beauford court relied on the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §§ 5701-5782, highlighting that it “allows wiretapping for police investigative purposes, but only after a strict showing of need by the attorney general or a district attorney before a Superior Court judge.” Beauford, 475 A.2d at 790 (citing

2020Compare United States v. Knotts, 460 U.S. 276 (1983) (finding no expectation of privacy using a beeper to aid in tracking Knotts’ car because a person traveling in an automobile on public streets has no expectation of privacy in his movements from one place to another) with United States v. Jones, 565 U.S. 400, 405 (2012) (finding a search occurred when agents installed a GPS tracking device on Jones’ car and continuously monitored the vehicle’s movements for 28 days). - 14 - The second line of cases held that a person does not have a reasonable privacy interest in information he voluntarily t

2020Compare United States v. Knotts, 460 U.S. 276 (1983) (finding no expectation of privacy using a beeper to aid in tracking Knotts’ car because a person traveling in an automobile on public streets has no expectation of privacy in his movements from one place to another) with United States v. Jones, 565 U.S. 400, 405 (2012) (finding a search occurred when agents installed a GPS tracking device on Jones’ car and continuously monitored the vehicle’s movements for 28 days). - 14 - The second line of cases held that a person does not have a reasonable privacy interest in information he voluntarily t

2026In Commonwealth v. Dunkins, [] 263 A.3d 247 ([Pa.] 2021) (“Dunkins II”), our Supreme Court concluded that a student’s assent to his college’s computing resources policy resulted in a voluntary relinquishment of any expectation of privacy concerning the records of his connection to the campus wireless internet network. [See i]d. at 255-56.

2023In Commonwealth v. Dunkins, 263 A.3d 247 (Pa. 2021) (“Dunkins II”), our Supreme Court concluded that a student’s assent to his college’s computing resources policy resulted in a voluntary relinquishment of any expectation of privacy concerning the records of his connection to the campus wireless internet network.

2025To the contrary, for purposes of federal law, the traditional third-party doctrine applies, and, thus, 86 See Katz, 389 U.S. at 361 (Harlan, J., concurring). 87 Smith, 442 U.S. at 743. 88 Id. [J-36A-2024, J-36B-2024 and J-36C-2024] - 25 Kurtz lacked an expectation of privacy in the material he voluntarily shared while using the internet.

2025To the contrary, for purposes of federal law, the traditional third-party doctrine applies, and, thus, 86 See Katz, 389 U.S. at 361 (Harlan, J., concurring). 87 Smith, 442 U.S. at 743. 88 Id. [J-36A-2024, J-36B-2024 and J-36C-2024] - 25 Kurtz lacked an expectation of privacy in the material he voluntarily shared while using the internet.

2025The court explained that, “[b]y typing in his search query and pressing enter, [Kurtz] affirmatively turned over the contents of his search to Google, a third party, and voluntarily 6 Id. at 516, 536 . 7 Id. at 522 . 8 Id. at 520 (citing Commonwealth v. Kane, 210 A.3d 324, 330 (Pa. Super. 2019)). 9 Id. (citing Commonwealth v. Pacheco, 263 A.3d 626 , 636, 636 n.10 (Pa. 2021)). 10 Id. at 521 (collecting cases).

2025The court explained that, “[b]y typing in his search query and pressing enter, [Kurtz] affirmatively turned over the contents of his search to Google, a third party, and voluntarily 6 Id. at 516, 536 . 7 Id. at 522 . 8 Id. at 520 (citing Commonwealth v. Kane, 210 A.3d 324, 330 (Pa. Super. 2019)). 9 Id. (citing Commonwealth v. Pacheco, 263 A.3d 626 , 636, 636 n.10 (Pa. 2021)). 10 Id. at 521 (collecting cases).

2025The court explained that, “[b]y typing in his search query and pressing enter, [Kurtz] affirmatively turned over the contents of his search to Google, a third party, and voluntarily 6 Id. at 516, 536 . 7 Id. at 522 . 8 Id. at 520 (citing Commonwealth v. Kane, 210 A.3d 324, 330 (Pa. Super. 2019)). 9 Id. (citing Commonwealth v. Pacheco, 263 A.3d 626 , 636, 636 n.10 (Pa. 2021)). 10 Id. at 521 (collecting cases).

2025The court explained that, “[b]y typing in his search query and pressing enter, [Kurtz] affirmatively turned over the contents of his search to Google, a third party, and voluntarily 6 Id. at 516, 536 . 7 Id. at 522 . 8 Id. at 520 (citing Commonwealth v. Kane, 210 A.3d 324, 330 (Pa. Super. 2019)). 9 Id. (citing Commonwealth v. Pacheco, 263 A.3d 626 , 636, 636 n.10 (Pa. 2021)). 10 Id. at 521 (collecting cases).

2014Co., 928 A.2d 186, 199 (Pa. 2007). .

2007Co., 928 A.2d 186, 199 (Pa.2007).

2002For example, in Schweitzer v. Rockwell International, 402 Pa.Super. 34 , 586 A.2d 383, 385 (1991), petition for allowance of appeal denied, 529 Pa. 635 , 600 A.2d 954 (1991), the Superior Court reversed a grant of summary judgment for the employer and held that, pursuant to Section 301(c)(1) of the Act, the employee was not required to pursue a remedy against her employer under the Workers' Compensation Act because the sexual harassment was personal in nature and not part of the proper employer/employee relationship.

2002For example, in Schweitzer v. Rockwell International, 402 Pa.Super. 34 , 586 A.2d 383, 385 (1991), petition for allowance of appeal denied, 529 Pa. 635 , 600 A.2d 954 (1991), the Superior Court reversed a grant of summary judgment for the employer and held that, pursuant to Section 301(c)(1) of the Act, the employee was not required to pursue a remedy against her employer under the Workers' Compensation Act because the sexual harassment was personal in nature and not part of the proper employer/employee relationship.

2023Commonwealth v. Duncan, - 10 - 817 A.2d 455 , 462-63 (Pa. 2003); Commonwealth v. DeJohn, 403 A.2d 1283 , 1290-91 (Pa. 1979).8 The third-party doctrine has also been extended to computer files, electronic messages, and other digital records.

2023Commonwealth v. Duncan, - 10 - 817 A.2d 455, 462-63 (Pa. 2003); Commonwealth v. DeJohn, 403 A.2d 1283, 1290-91 (Pa. 1979).8 The third-party doctrine has also been extended to computer files, electronic messages, and other digital records.

2007See, e.g., Cowden, 134 A.2d at 223 ; D’Ambrosio, 431 A.2d at 966.

2007See, e.g., Cowden, 134 A.2d at 223 ; D'Ambrosio, 431 A.2d at 966.

2025The Fourth Amendment does not protect the information on cards, such as on Appellant’s EBT card or credit, debit, and gift cards that are “routinely read by private parties at gas stations, restaurants, and grocery stores.” U.S. v. Bah, 794 F.3d 617, 631 (6th Cir. 2015); see also United States v. Turner, 839 F.3d 429, 436 (5th Cir. 2016) (“[S]ociety does not recognize as reasonable an expectation of privacy in the information encoded in a gift card’s magnetic stripe.”); United States v. Briere de L’Isle, 825 F.3d 426, 432 (8th Cir. 2016) (“[T]he purpose of a credit, debit or gift card is to en

2025The Fourth Amendment does not protect the information on cards, such as on Appellant’s EBT card or credit, debit, and gift cards that are “routinely read by private parties at gas stations, restaurants, and grocery stores.” U.S. v. Bah, 794 F.3d 617, 631 (6th Cir. 2015); see also United States v. Turner, 839 F.3d 429, 436 (5th Cir. 2016) (“[S]ociety does not recognize as reasonable an expectation of privacy in the information encoded in a gift card’s magnetic stripe.”); United States v. Briere de L’Isle, 825 F.3d 426, 432 (8th Cir. 2016) (“[T]he purpose of a credit, debit or gift card is to en

2025The Fourth Amendment does not protect the information on cards, such as on Appellant’s EBT card or credit, debit, and gift cards that are “routinely read by private parties at gas stations, restaurants, and grocery stores.” U.S. v. Bah, 794 F.3d 617, 631 (6th Cir. 2015); see also United States v. Turner, 839 F.3d 429, 436 (5th Cir. 2016) (“[S]ociety does not recognize as reasonable an expectation of privacy in the information encoded in a gift card’s magnetic stripe.”); United States v. Briere de L’Isle, 825 F.3d 426, 432 (8th Cir. 2016) (“[T]he purpose of a credit, debit or gift card is to en

2025The Fourth Amendment does not protect the information on cards, such as on Appellant’s EBT card or credit, debit, and gift cards that are “routinely read by private parties at gas stations, restaurants, and grocery stores.” U.S. v. Bah, 794 F.3d 617, 631 (6th Cir. 2015); see also United States v. Turner, 839 F.3d 429, 436 (5th Cir. 2016) (“[S]ociety does not recognize as reasonable an expectation of privacy in the information encoded in a gift card’s magnetic stripe.”); United States v. Briere de L’Isle, 825 F.3d 426, 432 (8th Cir. 2016) (“[T]he purpose of a credit, debit or gift card is to en

2023See Trader, 981 F.3d at 967-68; Morel, 922 F.3d at 9 . - 15 - Even if Appellant did have a constitutionally cognizable privacy interest in his searches of K.M.’s address, we would also find that the Google warrant was supported by probable cause.

2023See Trader, 981 F.3d at 967-68; Morel, 922 F.3d at 9 . - 15 - Even if Appellant did have a constitutionally cognizable privacy interest in his searches of K.M.’s address, we would also find that the Google warrant was supported by probable cause.

2023Commonwealth v. Duncan, - 10 - 817 A.2d 455 , 462-63 (Pa. 2003); Commonwealth v. DeJohn, 403 A.2d 1283 , 1290-91 (Pa. 1979).8 The third-party doctrine has also been extended to computer files, electronic messages, and other digital records.

2023Commonwealth v. Duncan, - 10 - 817 A.2d 455, 462-63 (Pa. 2003); Commonwealth v. DeJohn, 403 A.2d 1283, 1290-91 (Pa. 1979).8 The third-party doctrine has also been extended to computer files, electronic messages, and other digital records.