Cornell Law Review

Article

Inescapable Surveillance

Matthew Tokson, Professor of Law, University of Utah S.J. Quinney College of Law

This Article offers the first systematic analysis of inescapability in Fourth Amendment law. It challenges the prevailing wisdom that inescapability is a desirable or workable basis for Fourth Amendment protection. Inescapability does not provide a conceptually coherent standard for courts to apply. It incentivizes consumers to forego beneficial technologies, creating substantial social harms. It fails to adequately protect the most sensitive forms of personal information. It creates doctrinal confusion and ignores established precedents that contradict the inescapability model. Moreover, inescapability analysis elides individual differences—technologies that are avoidable for most people may be unavoidable for others, including the disabled, the poor, and other disadvantaged populations.

Jan 2021