Orin S. Kerr | 11.1.2024 1:57 AM
As regular readers may recall, I argued in a recent article that terms of service to an Internet account have little or no effect on Fourth Amendment rights in the account:
Almost everything you do on the Internet is governed by Terms of Service. The language in Terms of Service typically gives Internet providers broad rights to address potential account misuse. But do these Terms alter Fourth Amendment rights, either diminishing or even eliminating constitutional rights in Internet accounts? In the last five years, many courts have ruled that they do. These courts treat Terms of Service like a rights contract: by agreeing to use an Internet account subject to broad Terms of Service, you give up your Fourth Amendment rights.
This Article argues that the courts are wrong. Terms of Service have little or no effect on Fourth Amendment rights. Fourth Amendment rights are rights against the government, not private parties. Terms of Service can define relationships between private parties, but private contracts cannot define Fourth Amendment rights. This is true across the range of Fourth Amendment doctrines, including the "reasonable expectation of privacy" test, consent, abandonment, third-party consent, and the private search doctrine. Courts that have linked Terms of Service and Fourth Amendment rights are mistaken, and their reasoning should be rejected.
I'm pleased to say that the Second Circuit handed down a ruling in United States v. Maher this week rejecting the claim that terms of service waive Fourth Amendment rights, at least in the important context of a Google account. The decision is written in a somewhat narrow way, but I think it gets the basics correct. Here's the key passage from Maher:
The government argues that Maher's expectation of privacy in the Maher file that he emailed to his own Google account was extinguished by Google's Terms of Service, which advise users that Google (1) "may review content to determine whether it is illegal or violates our policies," App'x 113, (2) "may" report "illegal content" to........