Data Intermediaries: Fourth Amendments, Third Parties, Second Chances, and First Principles

Abstract

The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” This constitutional right shields citizens against meritless governmental intrusion into their homes, letters, and other effects. However, the third-party doctrine holds that individuals who voluntarily provide information to a third party do not have a reasonable expectation of privacy in such information. Therefore, Fourth Amendment protections do not apply to information that is unwittingly and automatically shared with third party private entities such as Facebook, Google, Amazon, and Apple, enabling the government to seize and search it without probable cause or a search warrant. All the government really has to do is just ask for it.

This Article seeks to fill the gap in constitutional protection that currently exists over our personal data shared with third parties. Specifically, we posit that those entities voluntarily seeking to act as fiduciaries with their patrons’ personal data, should be able to “stand in the shoes” of their patrons, and only provide any sensitive (and potentially incriminating) information to law enforcement through a transparent, structured, and standard-based process.

Keywords: data intermediaries, fourth amendment, third parties, carpenter, data, privacy, technology, constitution, third party doctrine, government, surveillance, trusts, fiduciaries, fiduciary duty, data trusts, digital fiduciaries, social media, facebook, google, amazon, apple