New law review article: Saving the Fourth Amendment from Commercial Conditioning by Reviving Voluntariness in Disclosures to Third Parties

Katz on a Hot Tin Roof – Saving the Fourth Amendment from Commercial Conditioning by Reviving Voluntariness in Disclosures to Third Parties by Mary Leary. Abstract on SSRN:

In a world in which Americans are tracked on the Internet, tracked through their cell phones, tracked through the apps they purchase, and monitored by hundreds of traffic cameras, privacy is quickly becoming nothing more than a quaint vestige of the past.

In a previous article discussing the intersection of technology and the Fourth Amendment, I proposed reframing the issue away from conventional commentary. The Missed Opportunity of United States v. Jones: Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World, 15 PENN. J. CON. L. 331, 333 (2012). That article posits that society has reached the point about which Justice Blackmun cautioned – the point at which privacy “expectations [have] been ‘conditioned’ by influences alien to well-recognized Fourth Amendment freedoms.” Society finds itself at this juncture not because of governmental conditioning, as Justice Blackmun warned, but because of a concept the article defined as “commercial conditioning.” That proposal called for a legislative requirement that an individual opt into such information disclosure before such a disclosure could be made.

This article further develops the concept of “commercial conditioning,” and explores not a legislative solution, but possible judicial responses to the growing reality of private commercial entities eroding privacy expectations and thereby expanding governmental power. This article seeks to guide the judiciary in analyzing evidence containing certain private information obtained by the government from these commercial entities. Such evidence should be afforded some of the procedural protections of the Fourth Amendment when the government accesses it – a protection not currently available to this private information.

The Fourth Amendment is designed to protect individuals from government intrusion into private aspects of their lives. The Third Party and Assumption of Risk doctrines are designed to preclude individuals who never intended their actions to be private from claiming, after the fact, that they were private. However, as technology has developed, commercial entities have created a world in which the Fourth Amendment cannot protect individuals from government intrusion into their lives. Through their commercial conditioning of society, commercial entities have made it impossible to assert a Fourth Amendment claim in two ways. First they remove information from individuals without their knowledge or voluntary consent. By doing so, these entities preclude individuals from demonstrating subjective expectations of privacy, or expectation that society will find reasonable. Second, when the government later obtains this information, the government hides behind the Third Party Doctrine to justify its possession of the information. In essence the government has successfully circumvented Fourth Amendment protections. The pathway, however, was laid by the commercial entities that facilitate this reality through commercial conditioning.

This article explores the implications of commercial conditioning. It further argues that restoration of the protections intended by the Fourth Amendment can be achieved by re-invigorating the voluntary consent aspect to privacy protection found in both the privacy cases as well as the Third Party Doctrine cases. These make clear that information obtained from an individual can come in two forms. The first is that which is voluntarily shared by him. The second is that taken from him. This article argues that courts must recognize that when the government systematically accesses information that was taken from an individual without knowledge or voluntary consent, that individual must be protected.