Corporate Avatars and the Erosion of the Populist Fourth Amendment

I. INTRODUCTIONWe live in a surveillance state founded on a partnership between government and the technology industry.1 Edward Snowden's revelations that law enforcement and intelligence agencies have obtained communications and phone and email records of Internet providers' users cement this reality.2A key feature of the surveillance state is the cooperative relationship between the private sector and the government. The private sector's role is vital to the surveillance both practically and legally. The private sector, of course, provides the infrastructure and tools for the surveillance. It is through the communications on smartphones built by Apple or the videos hosted by YouTube that the government obtains data. Surveillance is further facilitated by arrangements between the government and companies, such as built-in backdoors and informal agreements.The private sector is also critical to the surveillance state's legality. Under the third-party doctrine, the Fourth Amendment is not implicated when the government acquires information that people provide to corporations, because they voluntarily provide their information to another entity and assume the risk that the entity will disclose the information to the government. Therefore, people do not have a reasonable expectation of privacy in their calling data, or potentially even their emails. As a result, the government does not normally need a warrant to obtain information transmitted electronically.But the Fourth Amendment is not only a source of protection for individual privacy; it also limits government excess and abuse through challenges by the people. The third-party doctrine removes this vital and populist check on government overreach.The unsatisfying answer to this constitutional dilemma has been what I describe as the "corporate avatar dynamic." In Internet parlance, avatars refer to characters that represent users in venues as diverse as online games, communities, and discussion groups.3 But whatever form the avatar takes, the user controls the avatar. In response to critics of surveillance and the third1. party doctrine, apologists argue that even if someone does not have a privacy interest in a phone call or Internet data, the third party-Facebook, Sprint, or Twitter-may act as our avatar: The company can assert claims against searches, standing in the shoes of the person.4 In a similar vein, Congress enacted laws permitting communications providers to challenge directives concerning assistance with government surveillance on their own behalf and on behalf of their subscribers.5 And courts have upheld the right of third-party service providers to challenge government requests for information on their customers' behalf, with the Supreme Court indicating these challenges fulfill the government-checking purposes of the Fourth Amendment.6Concerned that the forces of government and commerce rule cyberspace, Lawrence Lessig asks: "How do we protect liberty when the architectures of control are managed as much by the government as by the private sector?"7 Making corporate avatars the primary means of challenging government searches on behalf of people inadequately responds to Lessig's concern.This Article diagnoses and solves the problem of corporate avatars. Corporations are poor avatars for people. They cannot serve a governmentchecking function when they have vested interests in cooperating with the government. Moreover, maintaining the Fourth Amendment's governmentchecking function in corporate avatars runs counter to the Framers' distrust of powerful corporations.This Article proceeds in five parts. Part II provides a brief overview of the third-party doctrine and its application to big data. Part III describes the corporate avatar dynamic. Part IV addresses corporate avatars' limitations and shows few instances of corporate challenges to government requests for user data. Part V shows how technology corporations are not likely to challenge government surveillance requests, and even less likely to make effective arguments asserting their individual customers' rights, because of their government connections, the legal constraints on transparency and disclosure, and their immunity for complying with the government. …