Document Type

Article

Disciplines

Criminal Procedure | Science and Technology Law

Abstract

How should the Constitution think about "outsourced law en­forcement"-that is, investigative activity carried out by private actors that substitutes, in practice, for the labor of law enforcement officials? Existing doctrine offers a simple answer to this question, centered on chronology. If the government was responsible for outsourcing law enforcement-if a private actor was operating as an "agent or instru­ment" of the state-Fourth Amendment scrutiny applies, just as it would apply to the conduct of state officials.' If, on the other hand, the outsourcing transpired voluntarily-if a private actor decided, without prodding, to assist the authorities-no Fourth Amendment scrutiny applies. This rule is often called the "private search" rule. I adopt that label here.

My goal is to suggest that the private search rule suffers a crucial blind spot, one that goes to the heart of Fourth Amendment privacy. When it comes to private searches, what we should care about is not which party-private actor or state official-initiated the relationship. What we should care about is whether the private actor, in monitor­ing other private actors, effectively stepped into the shoes of law en­forcement. The doctrine should ask whether the privacy-eroding conduct underpinning the search was functionally similar to-and should be subject to the same regulation as-the privacy-eroding conduct of law enforcement officials.

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