Inescapable Surveillance

48 Pages Posted: 7 Nov 2020 Last revised: 18 Mar 2024

See all articles by Matthew Tokson

Matthew Tokson

University of Utah - S.J. Quinney College of Law

Date Written: September 18, 2020

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.

Keywords: Surveillance, Fourth Amendment, Privacy, Internet, Data, Inescapable, Avoidable, Avoidability, Carpenter, Supreme Court, Cell Phone, Dating Apps, Smith, Miller, Uber, Disability, Ride Sharing

JEL Classification: K14

Suggested Citation

Tokson, Matthew J., Inescapable Surveillance (September 18, 2020). 105 Cornell L. Rev. 409 (2021), University of Utah College of Law Research Paper No. 398, Available at SSRN: https://ssrn.com/abstract=3694881 or http://dx.doi.org/10.2139/ssrn.3694881

Matthew J. Tokson (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

HOME PAGE: http://https://faculty.utah.edu/u6012359-Matthew_Tokson/biography/index.hml

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
262
Abstract Views
2,150
Rank
220,658
PlumX Metrics