Just Security: Resolving Carpenter’s Third-Party Paradox (Part II – The Solution) by Michael Dreeben, Elizabeth N. Hadley, Conor S. O’Shea and Johanna Seale:
In Part I, we described the third-party paradox that results when the government seeks potentially Fourth-Amendment-protected information from service providers who lack standing to raise their customers’ rights. Only two paths are available to solve the third-party paradox. The first option would be to give users notice before the search. This would allow the users themselves to assert their rights in a motion to quash the government’s demand that the third-party provider furnish user-related information. Such motions would permit courts to adjudicate Carpenter claims ex ante at the behest of the person whose rights are at stake before a potentially unlawful search occurs. But in practice, providing notice will often be impossible. The government frequently seeks, and courts frequently grant, non-disclosure orders that forbid a provider from alerting the target user to the request (see Part I for a longer discussion). Although Department of Justice (DOJ) policies advise caution in seeking nondisclosure orders, given how quickly and easily electronic data can be deleted or altered, or other harms materialize by alerting targets to the scope and direction of an investigation, prosecutors will often have a basis for seeking such orders.