109 Iowa L. Rev. 1487 (2024)
Abstract
The state agency requirement holds that the “Fourth Amendment restricts the conduct of the Federal Government and the States; [but] does not apply to private actors.” As Justice Alito has pointed out, this rule dramatically limits the capacity of the Fourth Amendment to protect the “security of the people . . . against unreasonable searches and seizures” because “today, some of the greatest threats to individual privacy may come from powerful private companies that collect and sometimes misuse vast quantities of data about the lives of ordinary Americans.” Thanks to the state agency requirement, cell service providers as well as cellphone application companies like Google, Waze, and Uber that gather, aggregate, and store detailed location information remain at liberty to track each of us and all of us free from Fourth Amendment restraint. Similarly, companies like Amazon that sell home surveillance devices, internet service companies like Verizon, Comcast, Google, and Microsoft that aggregate and exploit details about what we do online, and social media platforms such as Meta, X, and Google that gather and store comprehensive details about our associational networks, all appear immune from Fourth Amendment regulation despite having access to intimate details about our lives and presenting demonstrable threats to our liberty and democratic order.
Must it be this way? Or does the Fourth Amendment have a role to play in protecting us from these private surveillants? This Article argues that it does. An examination of the caselaw shows that the Fourth Amendment state agency requirement’s jurisprudential foundations are thin. In fact, the text and history of the Fourth Amendment provide substantial evidence that it was always meant to regulate searches conducted by “private” entities. Given this, it is natural to wonder where the rule came from and why it persists. Like so much of our legal culture, the answer is bound up in longstanding efforts to entrench and defend racial apartheid in the United States. If that is right, then there is more at stake here than questions of doctrine and constitutional interpretation. Modifying or abandoning our views on the Fourth Amendment state agency requirement may be essential to our ongoing efforts both to guarantee the “security of the people . . . against unreasonable searches and seizures” and to pursue a “more perfect union” for all of “the people.”