Global Climate Change Litigation: A New Class of Litigation on the Rise

Diya Kraybill

As climate change has come to the forefront of the public consciousness in recent years, we have seen increased global urgency and public awareness regarding this issue. This awareness has led to the advent of a new and ever-evolving body of environmental law related to mitigating climate change risks. 

According to the London School of Economics, “climate litigation is generally recognized to have started in the United States in the late 1980s but has since emerged as a growing global phenomenon.” Climate change litigation made headlines following the 2021 ruling by the Hague District Court in the case Milieudefensie v. Shell. This landmark ruling in environmental law held that Shell was required to both set and uphold emissions standards and reduction targets by 2030. Notably, the number of climate litigation cases filed has increased significantly following the signing of the 2016 Paris Agreement, with just over 800 cases filed between 1986 and 2014 and over 1,200 cases filed between 2014 and 2022. The Paris Agreement, while not legally binding, was a pivotal step forward because it was an attempt to “promote accountability and ambition” for all nations. 

With the growing number of climate change cases in recent years, precedents are set regularly, and cases are being brought against both corporations and governments. However, as we see a rise in cases, there are noticeable discrepancies in why these cases are brought forward and the bases upon which they are decided. While cases are brought with different forms of strategic intent, there are trends in the arguments being brought forward in the cases we have seen, making it possible to sort heterogeneous cases in the field of environmental law into various categories. 

Constitutional and human rights cases concern themselves with the constitutional and moral obligations that have failed to be upheld by a nation due to climate-change-related risks to citizens. According to the United Nations, “States have an affirmative obligation to take effective measures to prevent and redress these climate impacts, and therefore, to mitigate climate change, and to ensure that all human beings have the necessary capacity to adapt to the climate crisis.” If inadequate environmental conditions due to climate change compromise these rights, governments are liable to be sued. Under the rule of law, governments and citizens alike are accountable to laws that are “publicly promulgated, equally enforced and independently adjudicated” and are consistent with international human rights standards.

The challenge that arises is enforcing such liability under international law. In 2008, the UN Human Rights Council (UNHRC) issued a resolution that outlined the concern that climate change “poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights.” However, after conducting a later study of the relationship between human rights and climate change, they concluded that “it is less obvious whether, and to what extent, such effects can be qualified as human rights violations in a strict legal sense.” As such, these cases can be particularly challenging to bring forward, as many states will concede that climate change can interfere with the realization of human rights but reject the idea that failure to prevent climate change or take substantial action is a violation of international human rights law. The Paris Agreement is a legally binding international treaty; yet there is no formal accountability or consequence for nations failing to meet their individual goals. Instead, the Agreement focuses on transparency and ensuring that they are taking active measures to work towards their Nationally Determined Contributions (NDC). 

Administrative cases involve the review of “administrative decision-making by federal, state or local government, often concerning permitting and licensing approvals granted to high-emissions projects under environmental or planning laws.” An example of a case was ClientEarth v. Secretary of State, where ClientEarth, an environmental NGO, brought forward a case to the High Court challenging the UK government’s decision to approve what would become the largest gas plant in Europe. The court ruled in favor of the defendants, as the judge determined that the case “involved policy questions requiring a balancing of interests and that other public interests weigh against the UK’s climate goals.”  This case is illustrative of a key challenge that litigants bringing environmental claims face, as governments attempting to weigh different interests often conclude that climate change is not the most pressing issue, and can be compromised in favor of other more relevant or pressing issues. 

Private law cases involve disputes about negligence, nuisance, and public trust. For example, in Smith v. Fonterra Co-Operative Group Limited, the climate change spokesperson for the Iwi Chairs’ Forum, a Māori development platform, filed a case against seven New Zealand companies in the agriculture and energy sectors on the grounds of “public nuisance, negligence and breach of a duty to cease contributing to climate change.” However, this case, as with many other private law cases, was dismissed, as the court held that “tort law was not the appropriate vehicle for dealing with climate change” and that “every person in New Zealand — indeed, in the world — is (to varying degrees) both responsible for causing the relevant harm, and the victim of that harm.” Private cases have often been dismissed on the grounds that it is the responsibility of the government, rather than the court, to address climate change impacts and that it is difficult to prove that the harm the plaintiff incurred was directly attributable to the defendant’s actions.

Fraud and consumer protection cases are typically concerned with misrepresentation claims against corporations for failing to disclose the risk associated with their products or for “greenwashing” their products or practices. For example, Ramirez v. Exxon Mobil Corp. was a 2016 securities fraud class action suit alleging that Exxon failed to disclose climate risks, and this was also the first climate-change-related securities class action against a major oil and gas company. 

It is important to recognize that climate change litigation has had mixed success, particularly as this is such a new class of action with little precedent or comparable cases. Firstly, there is the question of justiciability and whether a court has the mandate to hear a claim about decisions on climate change. A notable example of this is in the case Lho’imggin et al. vs Her Majesty the Queen (2020) where two houses of the Canadian indigenous group filed a case against the Canadian government’s failure to meet their climate goals resulting in significant warming of their territories. The Federal Court of Canada responded by stating that “when the issue spans across various governments, involves issues of economics and foreign policy, trade, and a host of other issues, the courts must leave these decisions in the hands of others” and found that the case was not justiciable because the issue was inherently political rather than legal. Additionally, there is the challenge of establishing a causal link between the failure of a government to act in relation to climate change and the occurrence of subsequent negative climate developments. Litigants are, however, increasingly framing the case in terms of human rights and the state’s obligation to protect against the infringement of human rights due to climate change. 

As the scope of this new class of litigation continues to grow, it is imperative that companies are ready to respond to this changing regulatory landscape. While climate litigation is frequently met with challenges and is not always successful, the very existence of climate litigation is a powerful impetus for governments and corporate actors to uphold their social responsibility and pursue more sustainable environmental practices.

The Economic Impact of Prison Labor for Incarcerated Individuals and Taxpayers

Sarah Payne

  1. Introduction

            The United States’ prison population is currently the second highest globally, falling closely behind China at just over 1.5 million individuals incarcerated.[1] This means the United States accounts for approximately 25% of the world’s prison population, despite accounting for just 5% of the world’s population overall.[2] Furthermore, the average cost of incarceration in the United States of America sits at approximately $80 billion per year for the taxpayer,[3] while corporations within the private prison industry are estimated to bring in an estimated $374 million annually.[4] Given the disproportionate number of incarcerated individuals in the United States of America, the private prison industry is opportunely positioned to make a profit from cheap prison labor. The labor, however, is exploitative not only to incarcerated individuals, but also to taxpayers. At play within this legal situation is the profit of corporations complicit in the prison industry, the well-being of incarcerated individuals, and the financial implications for the taxpayer. This paper offers an alternative approach to the carceral system that deprioritizes corporate profit margins to better prioritize the incarcerated community and taxpayers.

  1. History and Previous Cases

While the Thirteenth Amendment outlawed slavery in United States, it did not eliminate the possibility of slavery does persist as a form of punishment for convicted criminals.[5][1]  Thus, despite the Thirteenth Amendment, slavery has since remained in the United States of America, in a roundabout fashion. Not only does the Thirteenth Amendment enable prison labor, but the Fair Labor Standards Act (FLSA) also enables prison labor through its definitions of ‘employees’ and ‘employers.’

In 1996, during Burleson v. the State of California, prison inmates attempted to receive federal minimum wage back-pay for work that took place within a California prison. At the conclusion of this case, the inmates did not receive the minimum wage compensation they sought, as they were not technically employees of the state according to the FLSA.[6] To fall under the definition of “employee,” individuals must pass the economic reality test, a legal test designed to determine the status of someone’s employee-employer relationship. More specifically, an employee, under the definition of the economic reality test, is someone who      “follows the usual path of an employee and is dependent upon the business which he or she serves.”[7] Because this prison labor is penological rather than pecuniary, these incarcerated individuals did not pass the economic reality test.[8] 

In 1992, incarcerated individuals in an Arizona state prison also sought to recover minimum wages from a plasma treatment center, which held a contract with the State Department of Corrections. The inmates failed to receive minimum wage retribution as the court this time held that neither the plasma treatment center nor the Department of Corrections fell within the Fair Labor and Standards Act’s  definition of an ‘employer,’ which is defined as, “any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency but does not include any labor organization or anyone acting in the capacity of officer or agent of such labor organization.”[9]

  1. Understanding the Economic Implications

The nature of prison labor varies from institution to institution. For example, the California Penal Code requires, “of every able-bodied prisoner imprisoned in any state prison [to perform] as many hours of faithful labor in each day and every day during his or her term of imprisonment as shall be prescribed by the rules and regulations of the Director of Corrections.”[10] One firsthand account from a women’s prison details an eight-hour day participating in manual labor outside, without ample water sources or sunscreen.[11] Another formerly incarcerated individual, Dominique Morgan, recounts his experience working as a chef while incarcerated. His workday would start at 4 am during breakfast hour, and he would work through dinner time at his facility. He made $2.25 per day and did not receive sick days, despite being diagnosed with HIV.[12]

While subject to prison labor, incarcerated individuals within private prisons who do happen to receive pay are also subject to fees deductible from their wages. These fees include, but are not limited to, fees for room and board and other miscellaneous fees to offset the cost of incarceration. What is remarkable, however, is the fact that these fees are not a substitute for the federal funding these prisons receive. Rather, the private prisons can collect these fees in conjunction with federal funding from taxpayers.[13] These institutions are not only exploiting incarcerated individuals as laborers; they are also pocketing money from taxpayers. This double-dipping of resources ultimately creates a profit for the private prison industry at the expense of citizens and incarcerated individuals.

            In addition to these circumstances, private companies are also encouraged to utilize incarcerated individuals as laborers via tax credit.[14] The Work Opportunity Tax Credit (WOTC) is a tax credit for employers for hiring individuals of certain demographics, such as veterans, summer youth employees, and long-term unemployment recipients; also included within the WOTC are felons.[15] Thus, this legislation not only allows corporations to exploit incarcerated individuals with little to no wages but also incentivizes the usage of prison labor by providing tax credits to companies for using such labor. Yet again, this double-dipping of resources further increases profit margins for private prisons and corporations at the expense of exploited workers and taxpayers.

            Given these two presented methods of financial profit, it is evident the exploitation of incarcerated individuals not only impacts these workers directly, but it also displaces taxpayer dollars into the hands of corporations through subtle schemes. While the exploitation of the incarcerated workers here is rather blatant, the negative impacts on the taxpayer are much more subtle[2] . Private prisons, as previously mentioned, are able to receive federal funding, which ultimately is derived from taxes. It is possible that this federal funding may be derived from the creation of new dollars within the United States; however, this production and distribution of money would still create the unintended consequence of inflation for the average citizen. Regardless, the structure of the private prison system demands a constantly laboring incarcerated population, which cannot exist without the financial support of facilities. Private companies utilizing prison labor benefit from WOTC, cheap labor, and federal funding. Incarcerated individuals within this system continuously labor; they do not receive the chance to rehabilitate or receive education, processes that are later illustrated in this paper as crucial to reducing recidivism[3] . Thus, the legal structures surrounding prison labor not only allow the demand for prison labor but also perpetuate recidivism. The taxpayer, within this system, is left indirectly funding this cycle of exploitation by nature of the prisons receiving federal funding.

  1. Legal Argument

            To address the economic concerns of the situation at hand, a three-pronged approach is presented. First, this approach uses different definitions of “employee” and “employer” than the FLSA to ensure the fair pay and treatment of working incarcerated individuals. Second, the approach disincentivizes the double-dipping behavior of corporations to partially alleviate the financial burden the current carceral system places on taxpayers. Lastly, the approach calls for the replacing of prison labor with educational opportunities that will subsequently reduce the rate of recidivism and thereby further alleviate the cost of incarceration placed upon taxpayers. 

  1. Definitions

            Redefining “employee” and “employer” to comprehensively include incarcerated individuals working for corporations while in federal and private prisons is the most direct approach to addressing the economic implications of cheap prison labor. Currently, the Fair Labor Standards Act encompasses niche demographics such as child laborers, agricultural workers, service members, and politicians;[16] however, it fails to directly encompass the demographic of incarcerated individuals. This exclusion of the prison population in the Fair Labor Standards Act is detrimental to the well-being of incarcerated individuals and taxpayers, as it facilitates the exploitation of those incarcerated. Without this comprehensive redefinition of employee and employer, there remains an incentive for mass incarceration for corporations, lobbyists, and politicians.[17] The burden upon the taxpayer is an unintended consequence of this incentivized mass incarceration, as the carceral system, from the court system to county jails to state penitentiaries, is ultimately funded by taxes. Enforcing a minimum wage by defining prisoners as employees will lessen the appeal of prison labor for corporations as a profit-increasing tactic. This, in turn, will subsequently lessen the annual cost of incarceration that falls upon the taxpayer.

  1. Disincentivizing Double-Dipping of Resources for Corporations to Better Prioritize a Reduction in Recidivism and Taxpayer Alleviation

            It is also necessary to eliminate the ability of corporations to receive a tax credit for utilizing prison labor under the Work Opportunity Tax Credit legislation. The incentivization of this labor use 1) perpetuates the economic demand for constant availability of a prison workforce, funded by taxpayers, 2) comes at the cost of taxpayers, and 3) disincentivizes providing rehabilitation programs for incarcerated individuals before reentry into American society. These education programs may have otherwise replaced the time demand of prison labor, and research suggests they reduce recidivism.[18] For example, one study proactive prison education significantly reduces the long-term costs of recidivism.[19] The reinforcement of the financial benefits to corporations via prison labor not only constantly demands the presence of a prison population, but it also is directly funded by taxpayers via the WOTC. Furthermore, in a long-term model, using the prison population as laborers inhibits any sense of rehabilitation for said individuals.

Limiting a private prison’s ability to charge incarcerated individuals fees for expenses taxpayers already pay for has the potential to limit the profit margins that make prison labor preferable for corporations. Furthermore, if incarcerated workers are genuinely presented with the opportunity to establish savings, their ability to establish themselves upon reentry into society may increase. This will, in turn, reduce the likelihood of poverty-related crimes that contribute to recidivism. Research suggests there is a strong correlation between poverty and incarceration. One study illustrates how men in the bottom ten percent of the United States’ income distribution are twenty times more likely to be incarcerated between the age of thirty and forty than those in the top decile.[20] Perhaps a more concerning revelation within this research, however, is the fact that within one year of release from prison, fewer than 20% of formerly incarcerated individuals earn more than $15,000.[21] As a result, formerly incarcerated individuals are extremely at risk of poverty-related recidivism immediately following their reintegration into society. Overall, without the ability to receive both rehabilitative education and accrue savings, research suggests rates of recidivism starkly increase, posing another long-term financial burden upon the taxpayer yet again.

  1. Education

            Research illustrates that recidivism decreases as education increases, and among prison populations, those with no GED are the most likely to become incarcerated more than once.[22] Furthermore, 19% of adult inmates are completely illiterate and 40% are functionally illiterate.[23] Prioritizing literacy and a GED education for incarcerated individuals will better rehabilitate them for the demands of society upon reentry and better situate them to later secure jobs. Together, these improvements will help lower rates of recidivism. A study by RAND suggests that for every $1 spent on prison education, $4-5 of recidivism costs are saved in the initial three years after release from prison.[24] Currently, there is a grant program established to facilitate education methods in the carceral system.[25] Refining this grant program to prioritize the most at-risk demographics in the carceral system, those who are illiterate and without a GED, can decrease the population of the carceral system in future years. This refinement is a long-term investment that requires incarcerated individuals to forego labor[4] , but research does offer optimistic results.

  1. Pros and Cons

            The most immediate threat these law reforms pose is one to the profit margins of corporations. As these profit margins decrease, there is a possibility that this prison labor is simply outsourced to other countries by corporations for a similarly low price. Thus, labor exploitation would simply shift from the exploitation of the United States’ incarcerated population to the exploitation of foreign workers. While this outcome is not necessarily desirable, the burden placed upon the taxpayer would remain relieved. Additionally, the timeframe of the legislative changes is also a possible pitfall. Although the long-term results are worthwhile, restructuring labor within the carceral system is sure to take years. Furthermore, implementing the proposed educational reforms to reduce rates of recidivism will also take years and come with an initial price tag. However, lower rates of crime after reentry into society and reduced prison populations associated with a decline in recidivism will later offset these initial investments.

  1. Conclusion

            Given the financial appeals of prison labor, it is no surprise corporations have taken full advantage of this possible asset. However, the multimillion-dollar annual profit of the prison industry comes at the cost of the exploitation of incarcerated individuals and taxpayers. Redefining incarcerated individuals as employees in an employee-employer relationship, disincentivizing prison labor for corporations, and prioritizing education within the carceral system can address these concerns. While incarcerated individuals are often referred to as forgotten members of society, their incarceration and exploitation continue to have an impact upon all of society.


29 U.S.C.A. § 203, 29 USCA § 203 29 U.S.C.A. § 203 (West) § (2018).

34 U.S.C.A. § 10741, 34 USCA § 10741 34 U.S.C.A. § 10741 (West) § (2018).

Burleson v. State of California, 83 F.3d 311 (9th Cir. 1996).

Center on Crime. “Education as Crime Prevention: Providing Education to Prisoners.” The Center on Crime, Communities, and Culture Research Brief Occasional Paper Series No. 2 (September 2, 1997).

“Employment Relationship Under the Fair Labor Standards Act.” United States Department of Labor. Wage and Hour Division United States Department of Labor, March 2022.,be%20subject%20to%20the%20Act.

Gilbreath v. Cutter Biological, Inc. 931 F.2d 1320 (9th Cir. 1991).

Hammad, Neveen. “Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery While Perpetuating Poverty in Black Communities.” Virginia Journal of Social Policy and the Law, no. Summer 2019 (2019).

Hendricks, Cindy, James E. Hendricks, and Susie Kauffman. “Literacy, Criminal Activity, and Recidivism ,” n.d.

Looney, Adam, and Nicholas Turner. “Work and Opportunity Before and After Incarceration.” Economic Studies at Brookings, March 2018.

McCormack, Simon. “Prison Labor Booms Despite High Unemployment.” HuffPost, December 10, 2012.

“Prison Population Total.” Prison Studies. World Prison Brief. Accessed December 8, 2022.

“Public Policy Impacts of Rand’s Correctional Education Research.” RAND. RAND Social and Economic Well-Being, n.d.

Rafieyan, Darius, and Cardiff Garcia. “The Uncounted Workforce.” Episode. The Indicator From Planet Money. National Public Radio, June 29, 2020.

Sloan, Bob, and Mike Elk. “The Hidden History of Alec and Prison Labor.” The Nation. The Nation, June 29, 2015.

U.S.C.A. Const. Amend. XIII, § 1, USCA CONST Amend. XIII, § 1

Wagner, Peter, and Bernadette Rabuy. “Following the Money of Mass Incarceration.” Prison Policy. Prison Policy Initiative, January 25, 2017.

West’s Ann. Cal. Penal Code § 2700, CA PENAL § 2700 Cal. Penal Code § 2700 (West) § (n.d.).

“Work Opportunity Tax Credit.” Internal Revenue Service. Internal Revenue Service. Accessed December 8, 2022.

[1] “Prison Population Total,” Prison Studies (World Prison Brief), accessed December 8, 2022,

[2] Neveen Hammad, “Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery While Perpetuating Poverty in Black Communities,” Virginia Journal of Social Policy and the Law, no. Summer 2019 (2019).

[3] Neveen Hammad, “Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery While Perpetuating Poverty in Black Communities,” Virginia Journal of Social Policy and the Law, no. Summer 2019 (2019).

[4] Peter Wagner and Bernadette Rabuy, “Following the Money of Mass Incarceration,” Prison Policy (Prison Policy Initiative, January 25, 2017),

[5] U.S.C.A. Const. Amend. XIII, § 1, USCA CONST Amend. XIII, § 1

[6] Burleson v. State of California, 83 F.3d 311 (9th Cir. 1996).

[7] “Employment Relationship Under the Fair Labor Standards Act,” United States Department of Labor (Wage and Hour Division United States Department of Labor, March 2022),,be%20subject%20to%20the%20Act.

[8] Burleson v. State of California, 83 F.3d 311 (9th Cir. 1996).

[9] Gilbreath v. Cutter Biological, Inc. 931 F.2d 1320 (9th Cir. 1991).

[10] West’s Ann. Cal. Penal Code § 2700, CA PENAL § 2700.

[11] Simon McCormack, “Prison Labor Booms Despite High Unemployment” (HuffPost, December 10, 2012),

[12] “The Uncounted Workforce,” The Indicator From Planet Money (National Public Radio, June 29, 2020),

[13] Neveen Hammad, “Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery While Perpetuating Poverty in Black Communities,” Virginia Journal of Social Policy and the Law, no. Summer 2019 (2019).

[14] “Work Opportunity Tax Credit,” Internal Revenue Service (Internal Revenue Service), accessed December 8, 2022,

[15] “Work Opportunity Tax Credit,” Internal Revenue Service (Internal Revenue Service), accessed December 8, 2022,

[16] 29 U.S.C.A. § 203, 29 USCA § 203 29 U.S.C.A. § 203 (West) § (2018).

[17] Bob Sloan and Mike Elk, “The Hidden History of Alec and Prison Labor,” The Nation (The Nation, June 29, 2015),

[18] Center on Crime, “Education as Crime Prevention: Providing Education to Prisoners,” The Center on Crime, Communities, and Culture Research Brief Occasional Paper Series No. 2 (September 2, 1997).

[19] “Public Policy Impacts of Rand’s Correctional Education Research,” RAND (RAND Social and Economic Well-Being),

[20] Adam Looney and Nicholas Turner, “Work and Opportunity Before and After Incarceration,” Economic Studies at Brookings, March 2018.

[21] Adam Looney and Nicholas Turner, “Work and Opportunity Before and After Incarceration,” Economic Studies at Brookings, March 2018.

[22] Cindy Hendricks, James E. Hendricks, and Susie Kauffman, “Literacy, Criminal Activity, and Recidivism.”

[23] Center on Crime, “Education as Crime Prevention: Providing Education to Prisoners,” The Center on Crime, Communities, and Culture Research Brief Occasional Paper Series No. 2 (September 2, 1997).

[24] “Public Policy Impacts of Rand’s Correctional Education Research,” RAND (RAND Social and Economic Well-Being),

[25] 34 U.S.C.A. § 10741, 34 USCA § 10741 34 U.S.C.A. § 10741 (West) § (2018).

The Content-Specific Doctrine: The Right to be Secure in Digital Effects

Xander de los Reyes

Amendment IV, US Constitution

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


The Fourth Amendment’s original intent was to protect Americans from unreasonable searches and seizures. At the time they were drafting the Constitution, the Founding Fathers remembered these violations of privacy as physical trespasses committed by British officials against colonists. This raises the question: Were the seizures of letters from a desk drawer or the broad searches of one’s coat pockets unreasonable searches and seizures because they were physical in nature? Or were they violations of privacy because of the content searched and seized?

I argue that unreasonable searches and seizures can occur without physical intrusion. As technology becomes increasingly prevalent, violations of privacy can occur in non-physical realms (i.e., “cyberspace”). Although these violations lack the physical dimension that characterized early-American conceptions of Fourth Amendment violations, they can nonetheless rise to a level of invasiveness that can be seen as functionally equivalent and can thus fall within the scope of the Fourth Amendment’s prohibitions.

This piece proceeds in the following manner. First, I briefly outline the history of the Fourth Amendment and its original intent, which was to protect Americans’ privacy from improper searches and seizures. Next, I outline twentieth-century case law that has shaped modern understandings of the Fourth Amendment. In this section, I also introduce the third-party doctrine, a legal doctrine that is troubling given society’s contemporary dependence on technology. Then, I discuss technological consent—or the lack thereof. Finally, I introduce a new legal framework, the content-specific doctrine. Instead of focusing on the physical nature of a search or third parties involved, this doctrine considers the content of effects (personal belongings) seized to be the highest-order consideration. The content-specific doctrine can protect privacy, digital civil liberties, and Fourth Amendment rights in this technological age. 


Under British rule, colonists were subject to documents known as writs of assistance or general warrants. Authorized by these documents, British authorities could enter colonists’ homes without probable cause. They could search homes indiscriminately for prohibited items and seize them. Even worse for the colonists, these writs lasted throughout the ruling king’s life and six months past their death. These documents flagrantly subjected the colonists to unreasonable searches and seizures.

When King George II died in 1760, an opportunity to protest the warrants arose. An advocate General from Boston, James Otis, rose to the occasion. Otis resigned his post and opposed the writs’ renewal in court in February of 1761. He could have merely objected to renewal, but went further. He argued that the writs were incompatible with the English constitution and went on to say that the only valid writs were “special writs.” (These were analogous to today’s specific and narrow search warrants.) Otis’s argument in court was one of the first formal colonial challenges to British authority. Scholars have also cited it as one of the earliest instances of colonial inclinations toward independence.

Otis lost the case, but his passionate argument left impressions on attendees and those who later learned of the event. One of the audience members would recall Otis’s speech fifty-six years later in a letter to a friend:

Every Man of an immense crowded Audience appeared to me to go away, as I did, ready to take Arms against Writs of Assistants. Then and there was the first scene of the first Act of opposition to the Arbitrary claims of Great Britain. Then and there the Child Independence was born.

These are the words of John Adams, America’s first vice president and second president. For him, the colonial conception of privacy was not just something of value—it was the very thing that set the pursuit of independence in motion.

This incident demonstrates the tremendous extent to which the colonists and Founding Fathers valued privacy. The writers of the Constitution—as survivors of British rule and its indiscriminate supervision—knew the importance of individual privacy and sought to protect people against unreasonable searches and seizures.

Since the ratification of the Constitution, determining violations of the Fourth Amendment has been complicated. As the nation aged, new circumstances and considerations arose. The invention of new technologies like telephones and computers, in addition to the Americans’ increasing dependency on business and service providers, has complicated Fourth Amendment jurisprudence. A synopsis of how courts have responded to these changes will prove useful.


Unreasonable searches and seizures were inherently physical in nature during British colonial rule and the early generations of the United States. This remained the case until the late nineteenth century when the invention of the telephone allowed for non-physical violations of privacy. Today, with the internet and interconnected world, physicality is not a requirement for a violation of privacy. This transition has created an entirely new subset of privacy rights: digital civil liberties. Next, I briefly outline case law of the twentieth century to show how courts responded to these technological changes.

Olmstead v United States (1928)

During Prohibition, federal law enforcement was investigating Roy Olmstead, a suspected bootlegger. Agents installed wiretaps on his telephone without a warrant. The agents installed the wires in the basement of the building Olmstead resided in and dug up phone wires underneath the nearby sidewalk. Because no physical intrusions occurred against Olmstead, the government felt it did not need a warrant. Olmstead countered that the warrantless searches violated his Fourth and Fifth Amendment rights.

In a 5-4 decision, the Supreme Court ruled against Olmstead. Chief Justice William Howard Taft authored the majority opinion. In it, he stated that “unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house” then no violation of the Fourth Amendment occurred. This ruling created a precedent that reemphasized the Fourth Amendment’s focus on physical intrusions. For nearly four more decades, as technology developed and spread, this precedent would stand.

Katz v United States (1967)

Federal law enforcement was investigating Charles Katz, a man suspected of illegal gambling. Knowing Katz used public phone booths, the government, acting without a warrant, utilized devices capable of eavesdropping and added them to the exterior of a phone booth. After they collected incriminating evidence, agents charged Katz with eight counts of illegal transmission of wagering information across state lines. After being convicted, he appealed his conviction and argued that the warrantless monitoring of his phone call violated the Fourth Amendment.

Reversing course from Olmstead, the Court ruled 7-1 in favor of Katz. Delivering the opinion of the Court, Justice Potter Stewart stated that the Fourth Amendment, “protects people, not places.” The ruling also created the reasonable expectation of privacy test, which has two requirements:

  1. The person whose Fourth Amendment rights have supposedly been violated must have had a subjective expectation of privacy.
  2. That expectation must be one that society can recognize as reasonable.

An individual’s Fourth Amendment rights are thought to have been violated if both conditions are affirmatively met. Failure to satisfy either condition would result in the determination that privacy rights were not violated.

The Katz ruling overturned the decision in Olmstead. It became the first landmark Supreme Court case that extended Fourth Amendment rights beyond physical intrusions, and its reasonable expectation of privacy test is still used today.

Third-Party Doctrine

Two cases in the 1970s, United States v. Miller and Smith v. Maryland, created a legal framework known as the third-party doctrine. In both of these cases, the petitioners claimed that their Fourth Amendment rights were violated. The searches and seizures of each case lacked a physical component and involved a third-party, such as a phone company or bank. These circumstances forced the Court to confront when individuals’ expectations of privacy were reasonable.

In United States v. Miller, the government accused Mitch Miller of not paying a liquor tax on distillation equipment. To investigate, federal law enforcement subpoenaed two of Miller’s banks. Without a warrant, they obtained records of his accounts. These documents were subsequently used against Miller in court, where he was convicted. Miller appealed and argued that his Fourth Amendment rights were violated when his bank records were obtained without a warrant.

In Smith v. Maryland, Michael Lee Smith was believed to have robbed a woman. Law enforcement also suspected that he was continuously calling the victim to harass her about the robbery. To investigate, the government asked Smith’s phone company to install a “pen register,” or a device that captures numbers dialed but none of the content of a phone call. When records indicated that Smith dialed the victim’s phone number, law enforcement was able to get a search warrant to find further evidence. Smith was later identified by the victim in a line-up and then convicted of robbery. He argued that the pen register violated his Fourth Amendment rights and appealed.

The Supreme Court ruled against the petitioners in both Miller and Smith. According to the Court, both men voluntarily gave their information to third parties (Miller and his bank; Smith and his phone company). Doing so, in the Court’s view, undermines the first requirement of the reasonable expectation of privacy test. When individuals provide information to third parties, they abandon any subjective expectation of privacy. 

Taken together, the decisions in Miller and Smith created the third-party doctrine. Under it, the government’s acquisition of information from third parties does not require a warrant. The soundness of this ruling was debatable in the 1970s. Today, however, society relies deeply on many more third-party services—many of them related to technology and the internet. Therefore, the third-party doctrine exposes Americans to significant intrusions of privacy.


With each passing day, technology becomes more interwoven into life. Many Americans use some form of instant messaging like iMessage, WhatsApp, or Facebook Messenger to communicate with family, friends, and coworkers. Some utilize navigation applications like Google Maps, Apple Maps, and Waze. When the COVID-19 pandemic began to shut down daily operations in 2020, workplaces, academic institutions, and other organizations moved to video-conferencing services like Zoom, Google Meet, and Microsoft Teams. All of these aforementioned services—whether they are used to video-call with grandparents or to navigate to a political rally—require the consent of users. Recalling the third-party doctrine, the proliferation of technology seems thorny at best and dire at worst.

A concerning fact is that most individuals do not attentively read the terms of service for these services. (User agreements such as “terms and services” go by other names: terms and conditions, terms of use, end-user license agreement, service terms, etc. While some lawyers may say there are slight variations between these definitions, they all functionally refer to a contract between a user and a provider of some service. Within this legal article, all of these terms are used synonymously.) Clicking or tapping the “I agree” box or button is, in the most literal sense, a check in the box for many people. This fact is tacitly, and sometimes explicitly, recognized by service providers. Amazon Web Services (AWS), for example, has included a clause referring to a zombie apocalypse in §42.20 of its service terms. They state that a previously mentioned restriction shall not apply in the situation of:

[A] widespread viral infection transmitted via bites or contact with bodily fluids that causes human corpses to reanimate and seek to consume living human flesh, blood, brain or nerve tissue and is likely to result in the fall of organized civilization.

AWS’s inclusion of zombies in a legally-binding contract implies that many people do not read these terms. It is an “Easter egg” for some vigilant users—or scholars examining contractual consent and relationships—to find.

Other services have left even more ridiculous statements in their terms of service. Purple, a wireless network company in Manchester, UK, embedded a clause within their terms of service that bound those who agreed to 10,000 hours of community service. 22,000 people consented. A European security firm, F-Secure, created a publicly available wireless hotspot for people and included in its terms of service that “the recipient agreed to assign their firstborn child to us for the duration of eternity.” GameStation, a UK video game retailer, included in their terms of service that users’ agreement gave the company ownership of each user’s “immortal soul.” In 2019, a high school teacher in Georgia won $10,000 when she read the terms of service for travel insurance from Squaremouth, which stated that the company would provide a reward to the first person who contacted the company in response to reading their terms of service. These are half-comical, half-frightening examples of the lack of awareness that most users have about the contents of terms of service.

There are strong implications when the third-party doctrine, legally-binding terms of service, and users’ failure to read those terms are considered together. Most users of a service are required to agree to terms of service—i.e., contracts—to use said service. Thus, they have consented to give information to a third party, thereby rendering that information subject to the third-party doctrine. With humanity’s increasing dependence on technology and its abundance of terms of service, there must be a new legal framework for determining privacy rights and digital civil liberties.


A doctrine that best protects Americans’ privacy is one that I call the content-specific doctrine. This framework emphasizes consideration of the content being searched and seized by the government. How information is obtained—be it physically or digitally—and a third party’s role are both considerations secondary to the content of a search. The doctrine’s primary concern is the qualitative features of the effects to be searched—the pages in a journal, the audio of a phone call, or the metadata of one’s social media account.

Content as Primary Focus

First, an example may elucidate why content is more important than physical circumstances or whether information was given to a third party. Consider the example of a “peeping Tom.” John is sexually interested in his coworker, Jane. Motivated by voyeurism, he hopes to obtain nude photos of Jane by standing outside her residence and covertly taking photos. Because modern cell phones are capable of capturing high-quality images—some of which are now capable of 100x zoom—John knows that he can easily capture these photos from outside Jane’s curtilage; he need not physically intrude.

Although no physical trespass may occur, this act is clearly immoral. The reason rests solely on the content of the information acquired: Jane, in her home, nude, and with an incredibly reasonable expectation of privacy. Normative judgments are independent of whether the trespass was physical in nature. Although this example does not involve the government, it is a clear example of why the content of what is obtained is more important than the physical circumstances of the acquisition.

Doctrine Use

Consider an example of law enforcement using the third-party doctrine to surveil an individual suspected of aiding women in getting abortions in a state where they have been banned or heavily restricted.1 Sarah, a resident of Texas, has publicly posted on social media that she wholeheartedly believes in bodily autonomy and would offer to drive women in need of an abortion to a provider. County sheriff’s deputies suspect Sarah of following through on her statements and driving low-income women in Houston to and from illegal abortion providers. They are able to see through Texas Department of Transportation records that she drives a Toyota Camry. Deputies find out that Toyota’s end user license agreement and privacy notice inform users that the company’s “ConnectedServices” collects data on vehicle owners, including location and voice recordings. Whether or not Sarah knows what she gave the car manufacturer permission to collect, deputies obtain records of her location and any voice recordings without a warrant.

In ascertaining whether Sarah’s Fourth Amendment rights were violated, the content-specific doctrine first considers the qualitative nature of the effects obtained by police—driving location data and audio recordings. This information can be incredibly personal to an individual. In daily life, most people assume that their whereabouts are not being tracked by others. Similarly, the conversations had in cars are assumed to be private in nature. The primary focus of the doctrine considers these features. In this instance, both categories of information are intimate and personal.

To help understand the content searched and seized, physically analogous scenarios can be helpful. Without technology, deputies would need to do at least one of two things to track Sarah’s whereabouts to the extent that Toyota’s data is functionally capable of doing: affix a GPS device to her vehicle or physically follow her whereabouts. Likewise, to record the conversations inside her vehicle, law enforcement would need to install a microphone inside the cabin of her Camry. In the absence of a warrant, these actions violate the Fourth Amendment.

Bringing these two ideas together yields an answer. The contents of the effects that deputies seek to obtain from Toyota—location and audio—are deeply personal. In physical circumstances, the search would be unreasonable without a warrant. Because the doctrine considers content as its primary focus, an answer is revealed: the government’s warrantless acquisition of Sarah’s location and voice recordings violated her Fourth Amendment rights.

The content-specific doctrine would not, however, protect the searches of Sarah’s public social media posts. The content, publicly available speech, is not as personal of information as location or audio recordings. Just as Sarah cannot reasonably expect that the words she utters in a  grocery store aisle are private, she cannot expect posts on public social media to be free from government observation.

Carpenter v. United States (2018)

An excellent example of actual legal thinking akin to the content-specific doctrine is the majority ruling in Carpenter v. United States. Suspecting Timothy Carpenter of robbery, the government obtained information from Carpenter’s cell phone service provider. Federal agents obtained “cell site location information” (CSLI) data that spanned 127 days. Over this duration, they collected 2,898 location points on Carpenter. This is an average of 101 data points per day. It can also be thought of as, on average, having one’s location documented and retroactively collected every 14 minutes and 15 seconds from August 20 until Christmas. The matter of the case focused on whether the acquisition of CSLI, without a warrant, violated Carpenter’s Fourth Amendment rights.

Fortunately for digital civil liberties, the Court ruled in favor of Carpenter. The majority opinion, authored by Chief Justice John Roberts, focused on the character of CSLI data and its investigative potential for law enforcement. The Chief Justice noted: “Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.” He further states that cell phone tracking is even more invasive than GPS-tracking a vehicle because individuals often leave their vehicles but most keep their cell phones on them at all times.2 He emphasizes this habitual proximity by noting that 12% of surveyed Americans confess to using their phones in the shower. The Chief Justice also notes that previous attempts by the government to recreate suspects’ past physical movements were limited by the sheer quantity of records and its ability to collect them. With CSLI, however, the government can achieve near-perfect surveillance. The Chief Justice states that: “Only the few without cell phones could escape this tireless and absolute surveillance.”

In ruling in Carpenter’s favor, the majority opinion functionally used the content-specific doctrine. Rather than determining the warrantless acquisition of Carpenter’s CSLI to be legal based on the third-party doctrine, the majority examined the content of the government’s search and seizure. The content, Carpenter’s whereabouts over a period of 127 days, was extremely sensitive information. The Court recognized this sensitivity and duly considered it to fall under the protections of the Fourth Amendment. In Carpenter, legal thinking similar to the content-specific doctrine recognized that the essence of information collected by the government was more important than the manner in which it was obtained.

It should be noted that the Court’s ruling in Carpenter was split: it was a 5-4 decision. Authoring the dissent, Justice Anthony Kennedy argued that CSLI data is no different than other business records that a third party maintains, and as such, the third-party doctrine should apply in Carpenter. This dissent was joined by Justices Alito and Thomas. The latter Justice filed an additional dissent that emphasized focusing on the physical nature of searches. In it, Justice Thomas discusses other Fourth Amendment precedents. He references a pre-Katz case where a “spike mike” (a microphone that can be physically driven through walls and other barriers for the purpose of eavesdropping) was inserted by federal agents into an individual’s home, without a warrant, which was clearly a physical violation of privacy. Justice Thomas makes this reference to support his disagreement with the Court’s decreased emphasis on physical circumstances since Katz.

Both dissents are grounded in reasoning that the content-specific doctrine would address. It would focus on the content obtained by the government. In this case, nearly 13,000 pieces of location information spanning a period longer than four months and documenting an individual’s physical movements. The content-specific doctrine would acknowledge the intimacy of this information and recognize that its warrantless seizure functionally creates an Orwellian surveillance state. Regardless of whether Carpenter consented to give this information to a third party (Justice Kennedy’s dissent) or the physical circumstances of the search and seizure (Justice Thomas’s dissent), the content-specific doctrine would find such government actions to violate the Fourth Amendment.

Opponents of the content-specific doctrine may say that it weakens the government’s ability to investigate crime. I acknowledge the government’s need to do so in order to maintain order. However, order can be maintained, and crime investigated, through legally granted search warrants. The Fourth Amendment states that, although people are free from unreasonable searches and seizures, they are not absolutely free from reasonable searches and seizures. Presumably, what constitutes a reasonable search is described in the amendment: those conducted with a warrant based on probable cause that “particularly [describes] the place to be searched, and the persons or things to be seized.” This wording was an attempt to prevent broad searches like those conducted under general warrants and writs of assistance.

In the digital age, such a warrant could coexist with the content-specific doctrine. Investigators’ efforts to obtain very specific information—say, a suspect’s whereabouts in a two-hour window on a specific date—could be seen as narrow enough to constitute a reasonable search and seizure. Of course, some privacy rights advocates may disagree (and I myself have hesitations). However, I acknowledge that the law must always seek to prioritize individual liberties while also conceding that some circumstances exist where those liberties can be narrowly encroached upon. Therefore, the content-specific doctrine is not at odds with the government’s acquisition of narrow and specific search warrants. Rather, it seeks to prevent, minimize, and rectify broad and warrantless searches in cyberspace—in other terms: unreasonable digital searches and seizures.


This article began with a question about the Founding Fathers’ conceptions of privacy: “Were the seizures of letters from a desk drawer or the broad searches of one’s coat pockets unreasonable searches and seizures because they were physical in nature? Or were they violations of privacy because of the content searched and seized?” After examining the Founding Fathers’ proclivities for privacy, it should be clear the transgressive character of unreasonable searches and seizures rested not on their physicality but on the government’s capture of private belongings and information. Privacy, for colonists and the Founding Fathers, was revered.

Knowing that non-physical violations of privacy exist, this article then considered twentieth-century Fourth Amendment case law, the third-party doctrine, and the implications of new technology. Taken together, they showed exploitative potential. In response, I provided a new legal framework for Fourth Amendment rights in cyberspace: the content-specific doctrine. Above physical circumstances or the role of third parties, the doctrine considers the content of information obtained by the government.

This doctrine will not magically settle all debates on privacy. It does, however, provide jurists with a way to consider Fourth Amendment rights in cyberspace. As technology becomes unavoidably interwoven into society, the content-specific doctrine can help protect Americans’ digital civil liberties. The people have a right to be secure in their digital effects.

1 Given how recent the overturn of Roe v. Wade 410 US 113 (1973) is, whether abortion-restricting states will explicitly ban aiding and abetting abortions is a matter of debate. However, because states generally make aiding and abetting other crimes illegal, it is not unreasonable to think such policies will exist, be they de jure or de facto.

2 A relevant and recent case involving the warrantless GPS tracking of a vehicle is Jones v. United States, 565 US _ (2012)


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