Over the past two years, the U.S. Department of Justice has argued in federal appeals courts that the Terms of Service can restrict or eliminate Fourth Amendment rights in online accounts. If the government were able to win on this issue, it would largely defeat any claim to online protection based on the Fourth Amendment. But as I argue in my newly published article, Terms of Service and Fourth Amendment Rights, 172 U. Pa. L. Rev. 287 (2024), these arguments are incorrect. Here is the abstract:
Almost everything you do on the Internet is governed by the Terms of Service. The terminology used in the Terms of Service generally gives Internet providers broad rights to address potential account misuse. But do these Terms alter Fourth Amendment rights, diminishing or even eliminating constitutional rights in Internet accounts? Over the past five years, many courts have ruled that it does. These courts treat the Terms of Service as a contract of rights: By agreeing to use an Internet account subject to the General Terms of Service, you waive your Fourth Amendment rights.
This article argues that the courts are wrong. The Terms of Service have little or no effect on your Fourth Amendment rights. Fourth Amendment rights are rights against the government, not against private individuals. Terms of Service can define relationships between private parties, but private contracts cannot define Fourth Amendment rights. This is true across the full range of Fourth Amendment doctrines, including the “reasonable expectation of privacy” test, consent, relinquishment, third-party consent, and the private search doctrine. The courts that have linked Terms of Service and Fourth Amendment rights are wrong, and their reasoning should be rejected.