CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, September 14, 2020

Zabel on Public Surveillance Through Private Eyes

Joseph (Joe) Zabel (Stanford Law School) has posted Public Surveillance Through Private Eyes: The Case of the EARN IT Act and the Fourth Amendment (2020 U. Ill. L. Rev. Online 167) on SSRN. Here is the abstract:
A critical question (under the original or the amended statute) is whether the EARN IT Act deputizes Interactive Computer Service Providers (ICSPs) as outsourced private surveillance agents, such as to lay the groundwork for a springing Fourth Amendment violation. In that vein, this article proceeds in the following manner. First, it provides a brief explanation of Section 230 and the EARN IT Act. It then discusses the Fourth Amendment implications of the Act: 1) whether either iteration of the Act deputizes ICSP surveillance; 2) if it does, to what extent do individuals retain a reasonable expectation of privacy with respect to the content they post on ICSPs?; and 3) finally, are the actions “encouraged” by the EARN IT Act otherwise reasonable under the “special needs” exception to the Fourth Amendment?

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