Buying Data and the Fourth Amendment

Hoover Institution Aegis Paper Series (forthcoming)

14 Pages Posted: 8 Jul 2021

See all articles by Orin S. Kerr

Orin S. Kerr

University of California, Berkeley School of Law

Date Written: July 4, 2021

Abstract

Can governments purchase user records as an end-run around the warrant requirement imposed by Carpenter v. United States? As a matter of Fourth Amendment law, the answer is “yes.” Companies have common authority over their business records. Common authority allows companies to consent to a government search of their databases even when their users oppose it. A voluntary sale manifests consent, permitting the government to buy access to Carpenter-protected records without a warrant or cause. Arguments exist for why a different rule may be justified someday. But for now, and for the foreseeable future, Fourth Amendment law permits buying business records even if users have rights in those records.

Keywords: Fourth Amendment, data, buying, Carpenter

JEL Classification: K1, k14

Suggested Citation

Kerr, Orin S., Buying Data and the Fourth Amendment (July 4, 2021). Hoover Institution Aegis Paper Series (forthcoming), Available at SSRN: https://ssrn.com/abstract=3880130

Orin S. Kerr (Contact Author)

University of California, Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States

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