CrimProf Blog

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

Monday, November 16, 2020

Tokson on Inescapable Surveillance

Matthew Tokson (University of Utah - S.J. Quinney College of Law) has posted Inescapable Surveillance (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:
 
Until recently, Supreme Court precedent dictated that a person waives their Fourth Amendment rights in information they disclose to another party. The Court reshaped this doctrine in Carpenter v. United States, establishing that the Fourth Amendment protects cell phone location data even though it is 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 cannot feasibly escape receives more Fourth Amendment scrutiny, while surveillance that can be avoided receives less, or none.


This Article offers the first systematic analysis of inescapability in Fourth Amendment law. It challenges the prevailing wisdom that inescapability is a desirable or workable basis for Fourth Amendment protection. Inescapability does not provide a conceptually coherent standard for courts to apply. It incentivizes consumers to forego beneficial technologies, creating substantial social harms. It fails to adequately protect the most sensitive forms of personal information. It creates doctrinal confusion and ignores established precedents that contradict the inescapability model. Moreover, inescapability analysis elides individual differences — technologies that are avoidable for most people may be unavoidable for others, including the disabled, the poor, and other disadvantaged populations.

Inescapability threatens to limit privacy rights to a narrow set of digital technologies while making a mess of Fourth Amendment doctrine. This Article analyzes these issues in depth and explores several alternatives for determining Fourth Amendment protections in the digital age.

https://lawprofessors.typepad.com/crimprof_blog/2020/11/tokson-on-inescapable-surveillance.html

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