Twice in the last month, the Ninth Circuit Court of Appeals has affirmed that the government can access records about you held by third parties without getting a warrant. It’s a nice illustration of the broad and deep reach of the “third party doctrine.”
U.S. v. Golden Valley Electric Association is the more recent of the two. In that case, the government delivered an administrative subpoena to a member-owned electricity cooperative asking for quite a bit of information about three residences it served:
customer information including full name, address, telephone number, and any account information for customer; method of payment (credit card, debit card, cash, check) with card number and account information; to include power consumption records and date(s) service was initiated and terminated for the period 10-01-2009 through 12-14-2010…
Golden Valley resisted the subpoena on a number of bases, including by arguing that criminal investigations require a warrant.
The court rejected the Fourth Amendment argument because the customer of a business like Golden Valley “lacks ‘a reasonable expectation of privacy in an item,’ like a business record, ‘in which he has no possessory or ownership interest.’” That’s the third-party doctrine: The government can access your electricity usage records and billing information without implicating the Fourth Amendment.
In mid-July, a different panel of the Ninth Circuit concluded the same thing about hotel records.