New Draft Article: "Terms of Service and Fourth Amendment Rights"

Just posted.

I have just posted to SSRN a new draft article, Terms of Service and Fourth Amendment Rights.  Here's the abstract:

Almost everything you do on the Internet is governed by Terms of Service. The language in Terms of Service typically gives Internet providers broad rights to address potential account misuse. But do these terms alter Fourth Amendment rights, either diminishing or even eliminating constitutional rights in Internet accounts?  In the last five years, many courts have ruled that they do. These courts treat Terms of Service like a rights contract: By agreeing to use an Internet account subject to broad Terms of Service, you give up your Fourth Amendment rights.

This Article argues that the courts are wrong. Terms of Service have little or no effect on Fourth Amendment rights. Fourth Amendment rights are rights against the government, not private parties. Terms of Service can define relationships between private parties, but private contracts cannot define Fourth Amendment rights. This is true across the range of Fourth Amendment doctrines, including the "reasonable expectation of privacy" test, consent, abandonment, third-party consent, and the private search doctrine.  Courts that have linked Terms of Service and Fourth Amendment rights are mistaken, and their reasoning should be rejected.

And here's the first two pages of the Introduction:

When you use the Internet, you are using computer networks that belong to others. You are visiting computers around the country, and sometimes around the world, that are typically owned by large companies. Those companies have lawyers. And those lawyers want to make sure you can't sue them for how you use their services. So they do what lawyers do best: They put it in writing. As a condition of use, the services require users to agree to contractual language giving the company broad rights over your use of their machines. Those contractual terms, usually called Terms of Service, appear to users like an endless CVS-receipt of legalese that they click through on the way to setting up an account.

This essay considers the effect of Terms of Service on Fourth Amendment rights. In particular, it asks whether language in Terms of Service can limit or even eliminate user Fourth Amendment rights. If Terms of Service say you have no rights, or only limited or conditional rights, do those terms control? In Carpenter v. United States and Riley v. California, the Supreme Court has suggested that the Fourth Amendment applies broadly to computers and the Internet. The Fourth Amendment requires a warrant if the government wants to obtain the contents of your messages, or even certain non-content records. But Terms of Service threaten that conclusion. If such Terms can narrow or eliminate Fourth Amendment rights online, then those rights may be an illusion. What the Supreme Court has given, Terms of Service might take away.

This is a genuine and pressing problem. In the last five years, the effect of Terms of Service on Fourth Amendment rights has been frequently litigated in lower courts. Judges have divided sharply. A few opinions say the Terms make little difference. But a majority of courts have treated Terms of Service like a rights contract: By agreeing to use the service, they reason, you agree to whatever narrowing or elimination of rights that the contract implies. Using the service becomes a waiver of Fourth Amendment rights that gives up a reasonable expectation of privacy or consents to any future search. The caselaw is recent, and existing legal scholarship has not yet addressed, or even recognized, the problem. But the decisions suggest a troubling reality: Our Fourth Amendment rights online hinge on the effect of Terms of Service.

This Article argues that Terms of Service have little or no impact on Fourth Amendment rights. With limited exceptions, Terms of Service cannot reduce or eliminate Fourth Amendment protections. The courts that have held to the contrary are wrong, and their reasoning should be rejected. The explanation rests on the under-appreciated role of private contracts in Fourth Amendment law. The Fourth Amendment provides rights against the government, and agreements between private parties and the government can relinquish Fourth Amendment rights. But Terms of Service play a different role. They define legal relationships between private parties, between private network provider and private network user. Agreements among private parties do not relinquish rights. As private agreements, Terms of Service might help clarify relationships relevant to some Fourth Amendment doctrines. But it is the relationships, not the language found in Terms of Service, that matter.

This wasn't an Article that I was planning to write, but it seemed important to take on this topic as more and more cases have adopted the view that Terms of Service control Fourth Amendment rights.  Anyway, it's new draft, and comments are very welcome at orin [at] berkeley.edu.  No need to send on corrections to typos or stuff like that, but any reactions to the substance would be appreciated.