Corporate Avatars and the Erosion of the
Populist Fourth Amendment
Avidan Y. Cover
ABSTRACT: Fourth Amendment jurisprudence currently leaves it to
technology corporations to challenge court orders, subpoenas, and requests by
the government for individual users’ information. The third-party doctrine
denies people a reasonable expectation of privacy in data they transmit
through telecommunications and Internet service providers. Third-party
corporations become, by default, the people’s corporate avatars. Corporate
avatars, however, do a poor job of representing individuals’ interests.
Moreover, vesting the Fourth Amendment’s government oversight functions
in corporations fails to cohere with the Bill of Rights’ populist history and the
Framers’ distrust of corporations.
This Article examines how the third-party doctrine proves unsupportable in
the big data surveillance era, in which communicating and sharing
information through third parties’ technology is a necessary condition of
existence, and non-content data, such as Internet subscriber information or
cell site location information, provides an intimate portrait of a person’s
activities and beliefs. Recognizing the potential for excessive government
surveillance, scholars, courts, and Congress have endorsed corporations as
one solution to Executive branch overreach and privacy invasion.
This Article demonstrates through both government and corporate reports that
companies have rarely challenged government requests for their users’ data.
Incentives to cooperate with government surveillance, including highly
profitable relationships with government, government regulation of
companies, and statutory immunity, make it unlikely that corporations will
ever be adequate avatars. This Article further documents how expansive
search powers originated in England with the aid of private industry, making
corporations dubious guardians of the Fourth Amendment.
Assistant Professor of Law, Case Western Reserve University School of Law; Director,
Institute for Global Security Law and Policy. I am grateful to Jessie Hill, Sharona Hoffman, Lew
Katz, Orin Kerr, Raymond Ku, and Cassandra Burke Robertson for their helpful comments.
Additional thanks to Andrew Dorchak, Judith Kaul, Lisa Peters, and Hui Wu for their assistance
with legal research.