The Mirage of Use Restrictions

Abstract

The Fourth Amendment strikes a balance between Americans’ privacy interests and the government’s need to investigate crime. It does so almost exclusively by placing restrictions on how the government collects information: if the government surveillance constitutes a “search,” the government must meet certain legal standards before it can engage in that surveillance. Over the past few decades, technological advances have increased exponentially the government’s ability to collect information, and many of these new surveillance methods do not fit into the traditional definitions of a Fourth Amendment search. In response, courts and commentators have searched for new doctrines to define and limit the government’s surveillance power. One of the more popular proposals that has been advanced is to force the government to adopt “use restrictions” — limitations on what the government can do with information that it collects or that is already in its possession. This new type of restriction represents a significant shift from the current paradigm of regulating government surveillance: a shift away from regulating how information is collected and towards regulating how the information is used. Use restrictions on surveillance data have been termed the “future of surveillance law.” They have been proposed in many different contexts, such as restricting how the government can process massive amounts of public data; limiting the use of information from DNA databases; regulating the information obtained through special needs searches; restricting the use of information that law enforcement obtains after conducting a search of a computer; or limiting the use of data from drones or police body cameras. This Article will review the many possible applications of use restrictions and discuss five potential doctrinal bases to justify them: (1) apply an “ongoing seizure” doctrine; (2) create a purpose test for the exclusionary rule; (3) re-define a “search” as including the processing of information, not just its collection; (4) make the purpose of the data collection a factor in determining whether collecting the data is a search; and (5) limit which government agencies are allowed access to the data that is collected. The Article concludes that these doctrinal bases are generally insufficient to justify imposing use restrictions. The Article argues that adopting use restrictions would be bad policy, since adopting type of restrictions would discourage the creation of tighter collection restrictions, give the government possession of vast amounts of our private data, and in some cases unduly hinder legitimate law enforcement functions. Therefore, the Article opposes the movement towards use restrictions and proposes that courts and legislatures maintain the focus of Fourth Amendment law on collection restrictions and move forward with use restrictions only in very limited circumstances.