The Digital Fourth Amendment: An Analysis of Search and Seizure Jurisprudence, Digital Third Parties, and the Right to Be Secure

Abstract

This senior thesis analyzes Fourth Amendment jurisprudence with a focus on digital third parties, which are any digital entities that are not the government or a criminal defendant (e.g., banks, cell phone companies, internet service providers, social media platforms, etc.). I analyze the origins and text of the Fourth Amendment, examine case law, conduct a nationally representative survey experiment (n = 793), and scrutinize the two main models of Fourth Amendment jurisprudence concerning digital third parties: the reasonable expectation of privacy test and the property rights model. In doing so, I find that Fourth Amendment jurisprudence has failed to protect people’s right to be secure against unreasonable searches and seizures when digital third parties are involved. Two things are responsible for this. First, the primary cause is a legal doctrine known as the third-party doctrine, which has undermined legal understandings of consent in the modern world. The secondary cause is the fact that jurists of the property rights model have ignored the fact that people have some property rights in the data that they produce with digital third parties. This research demonstrates that people’s right to be secure against unreasonable searches and seizures is virtually nonexistent in the presence of digital third parties.