All Data Are Not Created Equal: Upholding the Fourth Amendment's Guarantees When Third Party Consent Meets the Shared Electronic Device

Abstract

Under the Fourth Amendment, a third party can provide consent for law enforcement to search another individual’s property if the third party has “common authority” over the property. Such authority arises when the individual shares the property with the third party. The Constitution protects privacy but, once property has been shared, the expectation of privacy is diminished, thereby opening the door to third-party-consent searches. The emergence of electronic devices that store vast amounts of intimate data has complicated this third-party-consent doctrine. Our data are personal effects warranting constitutional protection, meaning that courts must identify the scope of a shared user’s authority over different data in the third-party-consent context. In addressing challenges to third-party-consent searches of electronic devices, multiple federal courts of appeals assume that all data on a device is subject to the same privacy expectations and thus can be searched based on the same type of third party authority — the general authority to access the device. But this approach is inconsistent with Fourth Amendment jurisprudence because it truncates the Amendment’s reasonableness analysis and defies prevailing social expectations. All data is not created equal and is not associated with the same privacy expectations. To determine whether a third party has authority to consent to a search of certain data, courts must consider the specific circumstances surrounding the data: the sensitivity of the data, whether steps have been taken to shield the data from shared users, and the foreseeability of a shared user accessing the data.

Keywords: constitutional law, criminal law, privacy, fourth amendment, civil rights, technology