Criminal Procedure | Science and Technology Law
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.
Brennan-Marquez, Kiel, "Outsourced Law Enforcement" (2016). Faculty Articles and Papers. 608.