Terms of Service and Fourth Amendment Rights

42 Pages Posted: 31 Jan 2023 Last revised: 16 Feb 2024

See all articles by Orin S. Kerr

Orin S. Kerr

University of California, Berkeley School of Law

Date Written: January 29, 2023


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.

Keywords: Fourth Amendment, Internet, Terms of Service

JEL Classification: K1, K14, K42

Suggested Citation

Kerr, Orin S., Terms of Service and Fourth Amendment Rights (January 29, 2023). 172 University of Pennsylvania Law Review 287 (2024)., Available at SSRN: https://ssrn.com/abstract=4342122 or http://dx.doi.org/10.2139/ssrn.4342122

Orin S. Kerr (Contact Author)

University of California, Berkeley School of Law ( email )

Berkeley, CA 94720-7200
United States

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