INTRODUCTION 288 I. TERMS OF SERVICE AND DIVIDED COURTS 291 A. Introduction to Terms of Service 292 B. Cases Holding That Terms of Service Determine Fourth Amendment Rights 294 C. Cases Holding That Terms of Service Do Not Determine Fourth Amendment Rights 300 II. TERMS OF SERVICE AND EXPECTATIONS OF PRIVACY 304 A. Fourth Amendment Rights in Shared Space 305 B. Does Formalizing the Sharing Arrangement Matter? 307 C. The Effect of Owner-User Agreements on Car Rentals Apartment Leases, and Hotel Rentals 308 D. The Special Case of Government Spaces and Government Policies 313 III. TERMS OF SERVICE AND RIGHTS-LOSING DOCTRINES 317 A. Four Ways to Lose Rights in Shared Space 318 B. Irrelevance to the Private Search Doctrine 321 C. Irrelevance to Third-Party Consent 322 D. Irrelevance to Direct Consent 324 E. Irrelevance to Abandonment 326 CONCLUSION 327
INTRODUCTION
When you use the Internet, you are using computer networks that belong to others. You are visiting computers around the country, and sometimes around the world, that are typically owned by large companies. 1 Those companies have lawyers. And those lawyers want to make sure you can't sue those companies for how you use their services. (2) So they do what lawyers do best: they put it in writing. As a condition of use, the services require users to agree to contractual language giving the company broad rights over your use of their machines. Those contractual terms, usually called Terms of Service, appear to users like an endless CVS-receipt of legalese that they click through on the way to setting up an account. (3)
This essay considers the effect of Terms of Service on Fourth Amendment rights. In particular, it asks whether language in Terms of Service can limit or even eliminate user Fourth Amendment rights. If Terms of Service say you have no rights, or only limited or conditional rights, do those Terms control? In Carpenter v. United States (4) and Riley v. California, (5) the Supreme Court has suggested that the Fourth Amendment applies broadly to computers and the Internet. The Fourth Amendment requires a warrant if the government wants to obtain the contents of your messages, or even certain non-content records. (6) But Terms of Service threaten that conclusion. If such Terms can narrow or eliminate Fourth Amendment rights online, then those rights may be an illusion. What the Supreme Court has given, Terms of Service might take away.
This is a genuine and pressing problem. In the last five years, the effect of Terms of Service on Fourth Amendment rights has been frequently litigated in lower courts. (7) Judges have divided sharply. A few opinions say the Terms make little difference. (8) But a majority of courts have treated Terms of Service like a rights contract: by agreeing to use the service, they reason, you agree to whatever narrowing or elimination of rights that the contract implies. (9) Using the service becomes a waiver of Fourth Amendment rights that gives up a reasonable expectation of privacy or consents to any future search. (10) The case law is recent, and existing legal scholarship has not yet addressed, or even recognized, the problem. (11) But the decisions suggest a troubling reality: our Fourth Amendment rights online hinge on the effect of Terms of Service. (12)
This Article argues that Terms of Service have little or no impact on Fourth Amendment rights. With limited exceptions, Terms of Service cannot reduce or eliminate Fourth Amendment protections. The courts that have held to the contrary are wrong, and their reasoning should be rejected. (13) The explanation rests on the underappreciated role of private contracts in Fourth Amendment law. The Fourth Amendment provides rights against the government, and agreements between private parties and the government can relinquish Fourth Amendment rights. But Terms of Service play a different role. They define legal relationships between private parties, such as those between private network provider and private network user. Agreements among private parties do not relinquish rights. As private agreements, Terms of Service might help clarify relationships relevant to some Fourth Amendment doctrines. (14) But it is the relationships, not the language found in Terms of Service, that matter.
From a practical perspective, this Article has an important doctrinal payoff: it secures Fourth Amendment rights online against the threat of nullification by Terms of Service. It explains why courts should reject a dystopian future in which our Fourth Amendment rights are at the mercy of form contracts written by lawyers for multinational corporations. That result would not only be disturbing. It also turns out to be wrong.
The Article also makes a deeper point about the nature of Fourth Amendment rights. Rights against unreasonable searches and seizures are rights against the government that rest on a judicial judgment that spaces and information are yours. Rights in shared space are common, and formalizing expectations between private parties sharing space has little or no impact on those rights. As a result, the language of private contracts cannot define Fourth Amendment protections. This explains why violating an apartment lease or breaching a rental car contract does not narrow or eliminate search and seizure protections. When we apply the Fourth Amendment to the Internet, the same rule should apply to Terms of Service. Fortunately, search and seizure rights are made of sterner stuff-both offline and online.
The argument proceeds in three parts. Part I introduces the role of Terms of Service. It explains the different types of Terms, introducing the difference between rules-of-the-road provisions and breach provisions. It then summarizes the recent case law on the role of Terms of Service in Fourth Amendment law. It shows that courts are divided on whether Terms define Fourth Amendment rights, and that many courts recently have agreed that Terms eliminate those rights.
Part II explains why Terms of Service cannot reduce or eliminate reasonable expectations of privacy online. Private contracts have little effect in Fourth Amendment law because the nature of those rights is against the government rather than private parties. This is reflected in case law on other owner-user agreements, such as apartment leases and rental contracts, and Terms of Service should follow the same path. Courts that have erroneously held otherwise have mistakenly followed case law on Fourth Amendment rights for government employees. Policies control in that one context because the government is the property owner, but that case law cannot be extended to private Internet providers.
Part III then considers the Fourth Amendment doctrines that might lead to lost privacy because of Terms of Service even if a reasonable expectation of privacy exists. It considers four such doctrines: the private search doctrine, consent, third-party consent, and abandonment. (15) It explains why, in each case, Terms of Service are irrelevant to how these doctrines apply. Terms can in some cases clarify relationships that have Fourth Amendment relevance. But the actual relationships, not formal language, controls. And Terms of Service are particularly unlikely to clarify relationships because few people read them and even fewer understand what they say.
I. TERMS OF SERVICE AND DIVIDED COURTS
This part explains what Terms of Service are and why they have come to be relevant to Fourth Amendment rights online. It explores existing case law, most of it in the last few years, that has divided on the effect of Terms of Service on Fourth Amendment rights.
A. Introduction to Terms of Service
There are many Terms inside typical Terms of Service--they often run many pages long--but two categories of Terms are particularly important for Fourth Amendment rights. The first kind of term is what I will call rules-of-the-road provisions. These Terms set expectations about how a service will be run, such as what the company will do with your data in various circumstances. The second kind of term is what I will call breach provisions. The Terms define a contract, and these Terms explain what the company considers a breach that allows the company to limit or delete the user's account. of course, the Terms can be related: a term of service can tell users the rules-of-the-road if they breach. But it is helpful to recognize the two types of Terms, even if they can blend in practice.
An example can help make this concrete. A majority of American adults have Facebook accounts, run by the company now known as Meta. (16) The account Terms of Service include the following: (17)
* "Meta may access, preserve, use and share any information it collects about you where it has a good faith belief it is required or permitted by law to do so." (18)
* If Meta learns of "misuse of our Products, harmful conduct towards others, and situations where we may be able to help support or protect our community," they "may take appropriate action based on our assessment that may include - notifying you, offering help, removing content, removing or restricting access to certain features, disabling an account, or contacting law enforcement." (19)
* "You may not upload viruses or malicious code, use the services to send spam, or do anything else that could disable, overburden, interfere with, or impair the proper working, integrity, operation, or appearance of our services, systems, or Products." (20)
* "[Y]ou cannot use Facebook if [any one of these are true]: You are under 13 years old.... You are a convicted sex offender.... We've previously disabled your account for violations of our Terms or the Community Standards " (21)
Note how the various Terms match the two categories. The first two are rules-of-the-road provisions. They set expectations for what Meta can do. Facebook is a product, after all, and these Terms tell you about the product and what Meta does...
