Authors

Avidan Cover

Abstract

The current state of Fourth Amendment jurisprudence leaves it to technology corporations to challenge court orders, subpoenas, and requests by the government for individual users’ information. The third-party doctrine denies people a reasonable expectation of privacy in data they transmit through telecommunications and Internet service providers. Third-party corporations become, by default, the people’s corporate avatars. Corporate avatars, however, do a poor job of representing individuals’ interests. Moreover, vesting the Fourth Amendment’s government-oversight functions in corporations fails to cohere with the Bill of Rights’ populist history and the Framers’ distrust of corporations.

This article examines how the third-party doctrine proves unsupportable in the big data surveillance era, in which communicating and sharing information through third parties’ technology is a necessary condition of existence, and non-content data, such as Internet subscriber information or cell site location information, provides an intimate portrait of a person’s activities and beliefs. Recognizing the potential for excessive government surveillance, scholars, courts, and Congress have endorsed corporations as one solution to executive branch overreach and privacy invasion.

This article demonstrates through government and corporations’ reports that companies have rarely challenged government requests for their users’ data. Incentives to cooperate with government surveillance, including highly profitable relationships with government, government regulation of companies, and statutory immunity, make it unlikely corporations will ever prove adequate avatars. The article further documents how expansive search powers originated in England with the aid of private industry, making corporations dubious guardians of the Fourth Amendment.

The article offers practicable solutions that will increase individual agency. First, the third-party doctrine should be limited in order to permit an expectation of privacy in some non-content data. Second, Congress should enact proprietary rights in certain personal data. In many instances, government surveillance may constitute a deprivation of that property interest, requiring notice and an opportunity to challenge the surveillance. Finally, advances in technology should facilitate individuals’ selection of corporations’ services and devices that ensure notice of government surveillance and enable direct communication between the people and government over searches and seizures.

Keywords

Surveillance, Fourth Amendment, FISA, National Security, Big data, Metadata, Privacy, Third-party Doctrine, Technology

Publication Date

2015

Document Type

Article

Place of Original Publication

Iowa Law Review

Publication Information

100 Iowa Law Review 1441 (2015)

Included in

Privacy Law Commons

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