The Private is Public: The Relevance of Private Actors in Defining the Fourth Amendment

Abstract

Because the Fourth Amendment regulates only governmental conduct, the behavior of private actors is almost wholly absent from academic Fourth Amendment literature. This Article argues that this exclusive focus on official conduct is myopic. Because the U.S. Supreme Court often looks to the conduct of private actors to determine the scope of permissible government conduct, a Fourth Amendment approach that ignores the invasions engaged in by these private actors is likely to concede questions regarding important civil liberties before the government even acts. This Article traces the development of Fourth Amendment jurisprudence, explaining the origins of the Court's current focus on private conduct. It then describes the current state of private intrusions upon privacy, arguing that emerging technologies have facilitated an exponential growth in the capacity of private actors to obtain and process private information. This expansion in private searching will likely lead courts to uphold similar invasions of privacy when government agents engage in the same kind of conduct. Finally, this Article proposes legal, legislative, and practical solutions to the current privacy crisis, and reluctantly concludes that only individual, practical steps are likely to produce effective privacy expansions in the near term.