Abstract
On October 16, 2023, the Colorado Supreme Court handed down the country’s first court opinion on the constitutionality of reverse keyword warrants. It found that Google’s Terms of Service created a Fourth Amendment property interest in a user’s search history such that police copying this data constituted a seizure. This was a completely novel contention that implicates basic, yet increasingly relevant and unsettled principles of property, contracts, and Fourth Amendment law.
This Comment will argue that fundamental principles of property, contracts, and Fourth Amendment law support the Colorado Supreme Court’s theory. It will explore how property rights are created and will tackle the viability of finding property rights in data such as search history. Further, this Comment will analyze the strength of terms of service in courts, dissect the relationship between contracts and how they can or cannot impact constitutional protection, and survey Fourth Amendment caselaw surrounding seizures of intangible property, including data. Finally, it will provide recommendations for how companies can better protect their users’ data from law enforcement tactics such as reverse keyword warrants.
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Business Organizations Law Commons, Constitutional Law Commons, Fourteenth Amendment Commons, Property Law and Real Estate Commons