SOCIAL NORMS IN FOURTH AMENDMENT LAW.

• Author: Tokson, Matthew

Courts often look to existing social norms to resolve difficult questions in Fourth Amendment law. In theory, these norms can provide an objective basis for courts' constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs. In reality, however, social norms can shift rapidly, are constantly being contested, and frequently reflect outmoded and discriminatory concepts. This Article draws on contemporary sociological literatures on norms and technology to reveal how courts' reliance on norms leads to several identifiable errors in Fourth Amendment jurisprudence.

Courts assessing social norms generally adopt what we call the closure principle, or the idea that social norms can be permanently settled. Meanwhile, courts confronting new technologies often adopt the nonintervention principle, or the idea that courts should refrain from addressing the Fourth Amendment implications of new surveillance practices until the relevant social norms become clear. Both approaches are flawed, and they have substantial negative effects for equality and privacy. By adopting norms perceived as closed, courts may embed antiquated norms in Fourth Amendment law--norms that often involve discrimination on the basis of race, gender, or class. By declining to intervene when norms are undeveloped, courts cede power over norm creation to companies that design new technologies based on data-extractive business models. Further, judicial norm reliance and nonintervention facilitate surveillance creep, the extension of familiar data-gathering infrastructures to new types of surveillance.

This Article provides, for the first time, a full, critical account of the role of social norms in Fourth Amendment law. It details and challenges courts' reliance on social norms in virtually every aspect of Fourth Amendment jurisprudence. And it explores potential new directions for Fourth Amendment law, including novel doctrinal paradigms, different conceptions of stare decisis in the Fourth Amendment context, and alternative institutional regimes for regulating government surveillance.

INTRODUCTION I. SOCIAL NORMS AND THE FOURTH AMENDMENT A. The Conventional Account of Social Norms B. The Jurisprudence of Social Norms C. Contested Social Norms and Judicial Nonintervention II. LAW AND THE CONSTRUCTION OF SOCIAL NORMS A. Law's Influence on Social Norms B. Law and the Construction of Technology III. CHALLENGING NORM RELIANCE AND JUDICIAL NONINTERVENTION IN FOURTH AMENDMENT LAW A. The Problem of Discriminatory Norms 1. Racially Discriminatory Norms 2. Gender-Discriminatory Norms 3. Class-Discriminatory Norms B. The Effects of Nonintervention 1. Nonintervention and GovernmentSurveillance 2. Informational Capitalism and Antiprivacy Norms C. Surveillance Creep IV. NEW DIRECTIONS FOR LAW AND SOCIAL NORMS A. New Fourth Amendment Paradigms B. Flexibility and Stare Decisis C. Alternative Institutional Structures CONCLUSION INTRODUCTION

Social norms play a central role in Fourth Amendment law. The Supreme Court has emphasized the "great significance given to widely shared social expectations" and "social practice," which can act as "a foundation of Fourth Amendment rights." (1) Indeed, for Fourth Amendment purposes, our "[expectations of privacy are established by general social norms." (2) Courts' assessments of norms drive outcomes in every aspect of Fourth Amendment law, including searches, (3) seizures, (4) reasonable suspicion, (5) consent searches, (6) and special-needs inspections performed without probable cause. (7)

Social norms are the informal standards of conduct or widely accepted behaviors that characterize a given community. (8) As such, they can give courts an ostensibly objective basis for their Fourth Amendment decisions, grounding their rulings in longstanding societal practices that people know and understand. Courts relying on social norms do not, in other words, start from scratch--they identify and adopt existing societal attitudes toward surveillance or police behavior and use those attitudes to chart the course of constitutional law. (9) The conventional account of social norms in Fourth Amendment law largely supports their use whenever feasible. (10)

This Article challenges the conventional account and gives a fuller and more nuanced picture of courts' reliance on social norms in Fourth Amendment law. It shows the dangers of the Fourth Amendment's current course, which ultimately privileges the data-extractive interests of technology companies and government entities over individual rights.

Currently, most courts assessing social norms approach them in one of two ways. When courts perceive that relevant social norms are stable, they adopt what we are calling the closure principle, or the idea that social norms can become more or less settled. In these situations, courts frequently apply social norms to resolve Fourth Amendment cases. When courts perceive that relevant social norms have not yet stabilized, they instead adopt what we call the nonintervention principle, or the idea that courts should decline to weigh in on new surveillance practices until the relevant social norms become clear. In these situations, courts generally refrain from addressing the Fourth Amendment implications of new technologies whenever possible.

These approaches are exemplified by the Supreme Court's decision in City of Ontario v. Quon, which involved the warrantless inspection of the text messages of government employees. (11) There, the Court explicitly refused to consider "far-reaching" issues raised by new surveillance-enhancing technologies, arguing that the judiciary "risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear." (12)

This Article's analysis, drawing on the contemporary sociological literature on norms and technology, reveals the flaws inherent in courts' current approaches. Social norms are neither immutable nor independent of sociolegal institutions. They are constantly being contested, and even seemingly stable norms are susceptible to gradual or rapid change. (13) Moreover, law has the capacity to alter social norms by expressing values that influence attitudes and behavior. The expressive force of early laws limiting where people could smoke cigarettes eventually altered social norms around smoking, providing the impetus for greater restrictions. (14) Antisodomy laws, though largely unenforced, shaped social norms by stigmatizing gay people--and their invalidation by the Supreme Court in 2003 helped to promote norms favoring equality and acceptance. (15) In neither case were existing social norms "closed," and law played a vital role in shaping and improving norms going forward.

The law's power to generate and influence norms is no different when new technologies are involved. Technologies are themselves socially constructed, as users adapt them to existing social structures in unpredictable ways and shape their future development. The car, the telephone, the internet, the smartphone, and countless apps and other software have been shaped in profound ways by law and social processes. (16)

Leveraging these insights, we identify substantial flaws in Fourth Amendment paradigms that rely on existing social norms or wait for them to settle before intervening. First, courts adopting existing social norms can entrench ideas that are outmoded and discriminatory. (17) Norms regarding police-citizen interactions, which encourage voluntary interaction with police officers and compliance with police demands, (18) can have racially discriminatory impacts. Norms involving domestic privacy and appropriate social behavior may have disparate gender impacts and can make it more difficult for authorities to prevent domestic abuse. (19) And norms surrounding residential buildings and workplace behavior can discriminate against poorer citizens or those with unstable employment situations. (20) In several important cases, courts have based their Fourth Amendment rulings on dominant social practices without asking why those practices exist. In doing so, they have often embedded discriminatory norms into constitutional law.

Second, courts that decline to intervene until norms have settled cede norm creation to data-extractive technology companies and encourage unfettered government surveillance. Proponents of nonintervention justify judicial neutrality by suggesting that sociotechnical norms should settle organically, as users and designs adapt to each other, without the judiciary putting a thumb on the scale. (21) But a thumb is already on the scale. In practice, sociotechnical norms are not organically generated by autonomous individuals. They are filtered through the economic interests of the most powerful actors in the field: the companies that design those technologies. Their business models are based on the idea that data is profit, an idea that scholars have called "surveillance capitalism" or "informational capitalism." (22) These companies carefully design and market products to encourage sharing, nudge consumer behavior toward disclosure, and desensitize users to the potential harms of surveillance. These processes influence the development of sociotechnical norms, pushing them toward greater acceptance of surveillance and devaluation of privacy. By declining to get involved in the business of norm generation, courts allow sociotechnical norms to develop in ways that align with data-extractive interests.

Further, if courts wait for sociotechnical norms to stabilize before regulating the government's use of new surveillance technologies, they will allow many forms of surveillance to go unchecked. (23) Social norms rarely definitively settle, and it may take several years or decades for technologies and norms to stabilize even partially. (24) Until they do, the government will have free reign to surveil...