Orin Kerr on Terms of Service and Fourth Amendment Rights

Orin Kerr's latest article is the top-downloaded article on the Contracts Top Ten list this week, and it likely will be for some time.  The article is especially interesting to me because it is about the interaction between contractual rights and constitutional principles, a topic that I have been writing about a lot in connection with the First Amendment.  See, e.g. this article uploaded to SSRN (I have since revised it, but you get the idea) and this blog post.  Also this one and this one, which links to six other posts on the subject.  

While my subject has been the First Amendment, Orin's is the Fourth Amendment.  However, Nancy Kim and I touched on the relationship of Terms of Service to the Fourth Amendment in our article on Internet Giants as Quasi-Governmental Actors.  We wrote in a pre-Carpenter context, and my limited understanding is that Carpenter is a game changer.  I look forward to diving in to Orin's article and thinking about its impact on the arguments Nancy and I made back in 2015.  I am also interested in thinking about his argument that Terms of Service should have little or no effect on Fourth Amendment rights and whether I need to reconsider my view that courts should weigh Terms of Service when they engage in rights mediation in the context of First Amendment rights.

This is a topic about which I may have more to say, but for now, I just wanted to flag Orin's work as of potential interest to readers of the blog.  I do hope to take the (for me) less-traveled road of actually reading articles I note with the intention of reading.  Knowing how way leads on to way, there is reason to doubt I will make my way back.

But perhaps . . . 

 

I shall be telling this with a sigh

Somewhere ages and ages hence:

Two roads diverged in a wood, and I—

I took the one less traveled by,

And that has made all the difference.