110 Iowa L. Rev. Online 202 (2025)
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Abstract
David Gray argues that we should scrap the requirement that the Fourth Amendment’s restrictions on searches and seizures apply only to the government (the “state agency requirement”). Instead, the Amendment’s protections should also be understood to regulate the large technology companies whose actions pose an equal or greater threat to citizens’ privacy. Through close attention to eighteenth and nineteenth-century history, he explains that the Amendment’s authors were partly inspired by their concern with private searches and asserts that it is therefore reasonable to resuscitate that concern in contemporary constitutional interpretation. In addition, he highlights the racism of the eras that gave rise to the state agency requirement, suggesting that this context should lead us to abandon a standard that has frequently been used to shield private discrimination from government oversight.
Gray is undoubtedly correct both to identify private companies as some of the greatest menaces to privacy today and to claim that private searches were a feature of Founding-era America. However, he appears to place too great an emphasis on that latter point. In fact, as many Fourth Amendment scholars have written, the Amendment’s drafters were far more interested in restricting governmental power than they were in eliminating the private use of warrants. As a result, both the historical problem and the historical solution Gray outlines are somewhat less compelling than he suggests. It is less clear than he claims that the state agency requirement was primarily the product of the racial anxiety of the late nineteenth century. Nor is it so obvious that a newly capacious understanding of the Fourth Amendment’s reach is to be found in eighteenth-century concerns. Nevertheless, Gray’s article performs a crucial service in asking us to consider the distasteful past and contemporary failings of a major restriction on one of our key constitutional protections, while also offering a potentially potent remedy.
This is a Response piece to The Fourth Amendment State Agency Requirement: Some Doubts, 109 Iowa L. Rev. 1487 (2024).