This Article concludes that most types of use restrictions do not have sufficient legal justifications. It first reviews the many possible applications of use restrictions and discusses 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. This Article then demonstrates that most use restrictions cannot be justified by any of these doctrinal bases. This Article further argues that adopting use restrictions would be bad policy, since adopting 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, this 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.
The Mirage of Use Restrictions,
N.C. L. Rev.
Available at: https://scholarship.law.unc.edu/nclr/vol96/iss1/4