Automation and the Fourth Amendment
| Author | Matthew Tokson |
| Position | Bigelow Fellow, The University of Chicago Law School |
| Pages | 581-647 |
581
Automation and the Fourth Amendment
Matthew Tokson
ABSTRACT: The Supreme Court has held that an individual relinquishes
any Fourth Amendment interest in information that he or she voluntarily
discloses to a third party. Known as the “Third Party Doctrine,” this
controversial rule is increasingly problematic in an age where a large
proportion of personal communications and transactions are carried out
over the Internet. Internet users expose virtually all of the information they
generate online—e-mails, web-surfing histories, search terms, and more—to
online service providers. As such, many scholars have assumed that Internet
information will be unprotected by the Fourth Amendment.
Yet the information disclosed to these online third parties is generally not
exposed to human beings at all; rather, it is processed entirely by automated
equipment. Neither courts nor scholars have squarely addressed whether
disclosure to these automated third parties is sufficient to eliminate Fourth
Amendment protection. However, courts have, without discussing the issue,
already begun to treat automated Internet systems as the equivalent of
human beings.
This Article examines how this emerging body of law threatens to deprive
personal information on the Internet of effective legal protection. It offers a
novel theoretical and legal analysis of information disclosure to automated
Internet systems and concludes that individuals whose information is
exposed only to automated systems incur no cognizable loss of privacy. It
then examines available data about the behavior and privacy expectations
of Internet users that reveals that they sharply distinguish between disclosure
to humans and disclosure to automated systems, even if courts thus far have
not. These relatively intuitive concepts have been widely overlooked, and
they have potentially enormous implications in several areas of law and
theory. This Article explores these implications, challenging existing privacy
Bigelow Fellow, The University of Chicago Law School. For helpful comments and
suggestions, thanks to Erica Andersen, Lisa Bernstein, Mary Anne Franks, Stephen Henderson,
Orin Kerr, Saul Levmore, Jonathan Masur, Paul Ohm, Adam Samaha, Lior Strahilevitz, and
workshop participants at the University of Chicago Law School and the Privacy Law Scholars
Conference. Special thanks to Jacob Hamann and David Mindell for excellent research
assistance.
582 IOWA LAW REVIEW [Vol. 96:581
market theories and conceptions of user behavior, and proposing a new
model of Fourth Amendment privacy on the Internet.
I. INTRODUCTION ...................................................................................... 583
II. THE FOURTH AMENDMENT AND THE AUTOMATION RATIONALE .......... 588
A. THE IMPORTANCE OF FOURTH AMENDMENT PROTECTION FOR
ONLINE DATA .................................................................................. 588
1. The Government and Personal Online Data ....................... 589
2. The Weakness of Statutory Protection ................................. 591
B. THE THIRD PARTY DOCTRINE AND THE AUTOMATION RATIONALE ..... 596
1. The Third Party Doctrine after Katz ..................................... 598
2. The Automation Rationale .................................................... 600
III. AUTOMATION ON THE INTERNET ........................................................... 601
A. INTERNET INFORMATION AND EXPOSURE TO AUTOMATED SYSTEMS .... 602
B. INTERNET INFORMATION AND EXPOSURE TO HUMAN BEINGS ............. 604
IV. THE INTERNET USER, AUTOMATION, AND PRIVACY ............................... 609
A. A THEORETICAL ANALYSIS OF DISCLOSURE TO AUTOMATED
SYSTEMS .......................................................................................... 611
1. Privacy Theories and the Human Observer ......................... 611
2. The Human Observer in Fourth Amendment Law ............. 615
3. The Centrality of Human Observation ................................. 616
B. INTERNET USER ATTITUDES AND BEHAVIOR ....................................... 619
1. Internet User Survey .............................................................. 622
2. Other Evidence ...................................................................... 627
V. DOCTRINAL AND THEORETICAL APPLICATIONS ..................................... 629
A. THE CHOICE .................................................................................... 629
1. The Current Confusion ......................................................... 631
2. The “Rental Property” Paradigm .......................................... 633
B. THE FUTURE OF KATZ ON THE INTERNET .......................................... 636
1. The Content/Noncontent Alternative ................................. 636
2. Katz Without the Automation Rationale and the
Dangers of Analogy ................................................................ 638
3. Burdening Law Enforcement ................................................ 640
4. Statutory Alternatives ............................................................. 642
C. THEORETICAL AND OTHER IMPLICATIONS ......................................... 643
1. Future Issues in Law and Automation .................................. 643
2. Targeted Advertising .............................................................. 644
3. Privacy Markets ....................................................................... 645
VI. CONCLUSION ......................................................................................... 647
2011] AUTOMATION AND THE FOURTH AMENDMENT 583
I. INTRODUCTION
In 1928, the Supreme Court determined that the Fourth Amendment
did not apply to telephone conversations.1 Government officials could
therefore wiretap conversations at will, so long as they did not trespass on
private property.2 In the ensuing years, the Justice Department, and
particularly the FBI, listened in on and recorded a staggering number of
personal communications. From 1941 to the mid-1960s, the FBI alone
recorded up to half-a-million conversations in the course of targeting at least
13,500 organizations and individuals for electronic observation.3 With oral
communications unguarded by the Fourth Amendment and receiving only
weak statutory protection (and not even that before 19344), no conversation
was off limits to federal surveillance. Federal agents eavesdropped on calls
between attorneys and their clients5 and recorded the personal
conversations of several sitting Supreme Court justices.6 They placed
wiretaps on the telephones of celebrities, activists, journalists, and
Congressmen.7 The FBI used the information it gathered for an
extraordinary variety of purposes: to collect evidence on Mafia members,
bootleggers, and potential spies;8 to monitor left-wing and right-wing
political groups;9 to intimidate or discredit Congressmen investigating the
FBI’s activities;10 to influence the selection of the Chief Justice of the
Supreme Court;11 and to attempt to ruin Martin Luther King, Jr.’s
reputation and induce him to commit suicide.12 The widespread use of
2. Id. at 457.
3. ALEXANDER CHARNS, CLOAK AND GAVEL: FBI WIRETAPS, BUGS, INFORMERS, AND THE
SUPREME COURT 17 (1992).
4. Communications Act of 1934, ch. 652, § 605, 48 Stat. 1064, 1103–04 (codified as
amended at 47 U.S.C. § 605 (2006)).
5. CHARNS, supra note 3, at 52; CURT GENTRY, J. EDGAR HOOVER: THE MAN AND THE
SECRETS 372 (1991).
6. CHARNS, supra note 3, at 17–18; GENTRY, supra note 5, at 630.
7. GENTRY, supra note 5, at 51, 119, 137, 228–29, 237, 246, 472, 501, 680; RONALD
KESSLER, THE BUREAU: THE SECRET HISTORY OF THE FBI 78 (2002).
8. GENTRY, supra note 5, at 230, 333, 346–49; KESSLER, supra note 7, at 78, 103.
9. GENTRY, supra note 5, at 137, 564; KESSLER, supra note 7, at 78.
10. GENTRY, supra note 5, at 119, 588.
11. CHARNS, supra note 3, at 24–31.
12. KESSLER, supra note 7, at 144. The FBI wrote anonymously to King and threatened to
disclose evidence of his extramarital affairs to the public if he did not kill himself within thirty-
four days, calling him “a colossal fraud and an evil, vicious one at that” and warning him,
“There is but one way out for you. You better take it before your filthy, abnormal fraudulent self
is bared to the nation.” GENTRY, supra note 5, at 572. The FBI, which had been wiretapping
King for years, shared information on King’s private life with governors, ambassadors, U.N.
representatives, British officials, journalists, and later, King’s wife, eventually driving King into a
deep depression. Id. at 529, 571–76.
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