by Matthew Tokson
I recently posted a new draft article to SSRN, "Inescapable Surveillance," forthcoming in the Cornell Law Review. It deals with the idea of "inescapability" in Fourth Amendment law, although many of its conceptual arguments apply outside of that context as well.
The concept of inescapability surfaced in its modern form in Carpenter v. United States. Before Carpenter, Supreme Court precedent dictated that a person waived their Fourth Amendment rights in information they disclosed to another party. In Carpenter, however, the Court established that the Fourth Amendment protects cell phone location data even though it's revealed to others. The Court emphasized that consumers had little choice but to disclose their data, because cell phone use is virtually inescapable in modern society.
In the wake of Carpenter, many scholars and lower courts have endorsed inescapability as an important factor for determining Fourth Amendment rights. Under this approach, surveillance that people can't feasibly escape receives more Fourth Amendment scrutiny, while surveillance that can be avoided receives less, or none. This is currently the dominant paradigm of Fourth Amendment search law post-Carpenter.
I argue that inescapability is not a desirable or workable basis for Fourth Amendment protection. Among other issues, it doesn't provide a conceptually coherent standard for courts to apply. It incentivizes consumers to forgo beneficial technologies, creating substantial social harms. It fails to adequately protect the most sensitive forms of personal information. And it elides individual differences—technologies that are avoidable for most people may be unavoidable for others, including the disabled, the poor, and other disadvantaged populations.
In short, inescapability threatens to limit privacy rights to a narrow set of digital technologies while making a mess of Fourth Amendment doctrine. I break down the various issues with inescapability and propose alternative approaches for determining Fourth Amendment protection after Carpenter.
Comments on the paper are welcome - you can find my email here.
Again, this goes beyond just Fourth Amendment law. There's a broader debate in privacy about how much responsibility consumers should bear for protecting their own privacy vs. how much tech companies and information service providers should be compelled to protect their consumers. Many have argued that the typical "notice and choice" approach of most privacy statutes places unreasonable burdens on individuals to navigate endless privacy policies and confusing interfaces. Placing the burden on individuals to escape surveillance in order to preserve their constitutional rights is even more troubling.