Curing Administrative Search Decay
41 Pages Posted: 14 Aug 2017 Last revised: 26 Mar 2018
Date Written: March 19, 2018
The entry of technology companies like Uber and Airbnb into highly regulated markets such as transportation and housing means that more data on individuals than ever is being transferred from private companies to the government, under the guise of regulatory oversight. The administrative search doctrine — an exception to the Fourth Amendment warrant requirement that allows for warrantless searches for regulatory purposes — would appear at first glance to support these requests.
However, this Article argues that regulatory searches that collect data from companies are radically different in scope than historical administrative searches. These searches can collect much more sensitive data about individuals than ever before, including detailed location data, financial information, and personally identifiable information. Regulatory requirements that fall under the administrative search doctrine can easily be overbroad, allowing for collection without meaningful limitations and few restrictions on subsequent uses. Without substantial reform, the current administrative search doctrine makes little sense in the modern era.
In Part I, the Article analyzes the historical justifications for regulatory searches and describes why they are insufficiently specific for the modern era. It explores how the administrative search doctrine has evolved to allow for more expansive searches, and how the third-party doctrine means that only businesses can assert the rights over the data collected by the government, even if that data concerns information about individuals. The risks of over-collection, data breaches, and improper users are significant. Part II discusses existing critiques and proposes a modification to the administrative search doctrine, using a narrow tailoring principle, but also notes the challenges and shortcomings to a legal solution.
Part III closes by offering a policy solution using a model based on the Fair Information Practice Principles (FIPPs). This model provides better clarity to the administrative search doctrine promulgated by the courts, allowing for more effective balancing of regulatory interests alongside the privacy rights of individuals. The sensitivity of our data means that the current system cannot endure any longer.
Keywords: administrative searches, fourth amendment, regulatory policy
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