Fourth Amendment Protection for Shared Privacy Rights in Stored Transactional Data

44 Pages Posted: 14 Nov 2005


Americans rely on ubiquitous technology to make their lives more productive and enjoyable. A side-effect of that technology, however, is massive compilations of data that result from transactions involving the most intimate details of our lives. The resulting databases create unprecedented opportunities for Government surveillance far beyond normal crime investigation. The "assumption of the risk" model employed by the Supreme Court over the last four decades would deny Fourth Amendment protection to that data as long as Government "persuaded" the database owner to disclose the information voluntarily.

This article explains that the judicial prevailing approach is inconsistent with the more general Fourth Amendment approach of Katz v. United States because it ignores the societal benefit of private transactional data. We propose a new model of relation-based shared privacy that provides Fourth Amendment protection to data that "Consumers" provide to "Collectors" in the course of commercial relationships reflecting the Consumer's trust. The new model would protect information maintained at least in part for the Consumer's benefit and to which the Consumer has direct access as long as the Consumer has obtained the Collector's undertaking to keep the information confidential from the Government. The model is not, however, intended to interfere with the efficiency of crime investigations. Therefore, Government could obtain access to the information without complying with the Fourth Amendment if it can show that it could obtain the information in other ways.

Keywords: privacy, databases, internet, fourth amendment, ubiquitous technology, pervasive technology. e-commerce

JEL Classification: G28, K00, K23, K42, L50, L86

Suggested Citation

Brenner, Susan W. and Clarke, Leo L., Fourth Amendment Protection for Shared Privacy Rights in Stored Transactional Data. Brooklyn Journal of Law and Policy, Forthcoming. Available at SSRN:

Susan W. Brenner

University of Dayton - School of Law ( email )

300 College Park
Dayton, OH 45469
United States
937-229-2929 (Phone)
937-229-2469 (Fax)

No contact information is available for Leo L. Clarke

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