Contracting for Fourth Amendment Privacy Online

Abstract

For decades, the Supreme Court has applied what is known as the third party doctrine, which allows police, acting without a warrant, to secure information that an individual has voluntarily revealed to others. The doctrine has long been criticized by scholars and only narrowly escaped its formal demise last Term in Carpenter v. United States, when the Supreme Court deemed it inapplicable to geo-locational data possessed by cell phone providers (third parties).

While the merits of the third party doctrine continue to be debated, an important development has escaped notice: state and lower federal courts have been hollowing it out from below. They have done so when deciding Fourth Amendment privacy claims brought by individuals who have shared their information online, basing their decisions in significant part on users’ privacy settings and terms of service agreements. As the cases make clear, mere exposure of information to others, or the theoretical possibility of doing so, does not necessarily negate the privacy expectations of users, as robust application of the third party doctrine would require. Increasingly, the dispositive question of the third party doctrine, whether one “voluntarily” exposes information to another, is assuming new meaning in the Internet Age, based on the application of contract law principles.

Building on these doctrinal developments, this Article provides the first in-depth discussion of the potential role contract law can play in Fourth Amendment privacy determinations. We bring to bear standard tools of contract interpretation, combined with the growing body of social science research illuminating the behavior and motivations of contracting parties, to provide a fuller, more realistic understanding of privacy expectations in the online environment. In doing so, we offer a much-needed doctrinal alternative to the Katz reasonable expectation of privacy test, justly condemned as ill-suited for the internet by the members of the Supreme Court and scholars alike.

Keywords: Fourth Amendment, Privacy, Online, Social Media