Essay

Fourth Amendment Trespass and Internet Search History

Browsing the internet is an everyday activity for many Americans. Law enforcement has capitalized on this reality by employing a novel investigative technique: reverse keyword search warrants. Keyword warrants allow investigators to obtain detailed information from search engine companies about any internet user who entered a specific phrase into the search engine. In recent years, the constitutionality of these warrants has sparked growing debate. Underlying this debate rests a critical threshold question: Does the Fourth Amendment require the government to obtain a valid warrant before accessing a person’s internet search data? Thus far, three courts have addressed the question, all reaching different conclusions.

One reason for the lack of consensus is that these courts have relied exclusively on the “reasonable expectation of privacy” test to determine whether a warrant is required to access search data. This Essay explains why assessing search data under the privacy framework leads to muddled analysis and contradictory conclusions, contributing to constitutional uncertainty. We urge courts to look instead to the traditional trespass test set out in United States v. Jones to determine whether the Fourth Amendment protects search data. By analyzing the issue through the lens of trespass, this Essay reaches a clear answer: accessing search data is a Fourth Amendment search. In doing so, this Essay adds urgency to the keyword warrant debate, advances Fourth Amendment doctrine in a rapidly evolving technological landscape, and helps realize the full protections of that constitutional guarantee.

Introduction

On July 19, 2016, someone broke into a Pennsylvania home and assaulted the woman living there.1 1.See Commonwealth v. Kurtz, 294 A.3d 509, 516–17 (Pa. Super. Ct. 2023), appeal docketed, 306 A.3d 1287 (Pa. 2023).Show More After spending two months exhausting their physical leads, law enforcement was still without a suspect.2 2.See Appellee’s Brief at 7–8, 12, Kurtz, 294 A.3d 509 (No. 811 MDA 2021).Show More So, investigators turned to Google.3 3.Kurtz, 294 A.3d at 517.Show More Specifically, they obtained a warrant directing Google to disclose detailed information associated with any user who searched the victim’s name or home address in the week preceding the attack.4 4.Id.Show More This novel investigative technique, known as a “keyword warrant,”5 5.Both throughout the literature and within this Essay, “keyword warrants” are referred to interchangeably as “keyword search warrants” or “reverse keyword search warrants.” For additional discussion regarding the mechanics of keyword warrants, see Helen Winters, Note, An (Un)reasonable Expectation of Privacy? Analysis of the Fourth Amendment When Applied to Keyword Search Warrants, 107 Minn. L. Rev. 1369, 1387–89 (2023).Show More led investigators to John Edward Kurtz, who was later charged and convicted.6 6.Kurtz, 294 A.3d at 516–18.Show More On appeal, Kurtz challenged the warrant as unconstitutional, arguing that its omission of a named suspect violated the Fourth Amendment’s probable cause and particularity requirements.7 7.Appellant’s Brief at 12, 19, Kurtz, 294 A.3d 509 (No. 811 MDA 2021). The constitutionality of keyword warrants has received significant attention. Some commentators have argued that keyword warrants are unconstitutional general warrants. See Chelsa Camille Edano, Comment, Beware What You Google: Fourth Amendment Constitutionality of Keyword Warrants, 97 Wash. L. Rev.977, 1000–02 (2022); Brian L. Owsley, Searching a Person’s Thoughts: Keyword Search Warrants and Fourth Amendment Concerns, 28 Stan. Tech. L. Rev.66, 102–03 (2025). Others have articulated theories supporting the warrants’ constitutionality. SeeMary D. Fan, Big Data Searches and the Future of Criminal Procedure, 102 Tex. L. Rev. 877, 925–27 (2024).Show More The constitutional sufficiency of the warrant was ultimately irrelevant to the case, however, because the court held that government access to Kurtz’s search data was not a search at all.8 8.Kurtz, 294 A.3d at 522.Show More Thus, no valid warrant was required to obtain his search data.9 9.The Fourth Amendment’s protections are not triggered unless a search or seizure occurs. County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998).Show More

Commonwealth v. Kurtz raises a pressing question: Can the police access your internet search history without a warrant? Because it is not clear that a keyword warrant can ever be validly issued, the constitutionality of keyword searches may depend on the threshold question of whether it is a Fourth Amendment “search” that requires a warrant.10 10.See supra note 7.Show More As of this writing, however, no consensus answer has emerged: three state courts have addressed the question, and they have all reached different conclusions.11 11.Compare Kurtz, 294 A.3d at 522 (finding that no Fourth Amendment search occurred when the government used a keyword warrant), with People v. Seymour, 536 P.3d 1260, 1272 (Colo. 2023) (finding that a keyword warrant constitutes a search, but only under Colorado’s Constitution and not the Fourth Amendment), and Commonwealth v. Clements, 113 Va. Cir. 576, 591 (2024) (finding that the government engaged in a Fourth Amendment search when it employed a keyword warrant). No federal court has published an opinion addressing the question.Show More One reason for this uncertainty is that courts have relied on the familiar “reasonable expectation of privacy” framework to answer the threshold search question.12 12.See Kurtz, 294 A.3d at 521–23 (engaging exclusively with the Katz reasonable expectation of privacy framework when considering whether a keyword warrant is a search); Seymour, 536 P.3d at 1270–72 (same); Clements, 113 Va. Cir. at 590–91 (same).Show More

This Essay seeks to change that. Part I explains why applying the reasonable expectations test to search data produces contradictory results. Part II urges courts to look instead to the traditional trespass test endorsed in United States v. Jones to determine whether the Fourth Amendment protects search data. Though the Supreme Court has never applied the trespass test to intangible property, we explain why adopting this approach in the context of search data is consistent with Fourth Amendment jurisprudence and produces a clear answer: accessing search data is a search. Finally, Part III addresses the limitations of our trespass analysis and explores its impact on existing case law.

  1.  See Commonwealth v. Kurtz, 294 A.3d 509, 516–17 (Pa. Super. Ct. 2023), appeal docketed, 306 A.3d 1287 (Pa. 2023). ↑
  2.  See Appellee’s Brief at 7–8, 12, Kurtz, 294 A.3d 509 (No. 811 MDA 2021). ↑
  3.  Kurtz, 294 A.3d at 517. ↑
  4.  Id. ↑
  5.  Both throughout the literature and within this Essay, “keyword warrants” are referred to interchangeably as “keyword search warrants” or “reverse keyword search warrants.” For additional discussion regarding the mechanics of keyword warrants, see Helen Winters, Note, An (Un)reasonable Expectation of Privacy? Analysis of the Fourth Amendment When Applied to Keyword Search Warrants, 107 Minn. L. Rev. 1369, 1387–89 (2023). ↑
  6.  Kurtz, 294 A.3d at 516–18. ↑
  7.  Appellant’s Brief at 12, 19, Kurtz, 294 A.3d 509 (No. 811 MDA 2021). The constitutionality of keyword warrants has received significant attention. Some commentators have argued that keyword warrants are unconstitutional general warrants. See Chelsa Camille Edano, Comment, Beware What You Google: Fourth Amendment Constitutionality of Keyword Warrants, 97 Wash. L. Rev.

    977, 1000–02 (2022); Brian L. Owsley, Searching a Person’s Thoughts: Keyword Search Warrants and Fourth Amendment Concerns, 28 Stan. Tech. L. Rev.

    66, 102–03 (2025). Others have articulated theories supporting the warrants’ constitutionality. See Mary D. Fan, Big Data Searches and the Future of Criminal Procedure, 102 Tex. L. Rev.

    877, 925–27 (2024).

    ↑

  8.  Kurtz, 294 A.3d at 522. ↑
  9.  The Fourth Amendment’s protections are not triggered unless a search or seizure occurs. County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998). ↑
  10.  See supra note 7. ↑
  11.  Compare Kurtz, 294 A.3d at 522 (finding that no Fourth Amendment search occurred when the government used a keyword warrant), with People v. Seymour, 536 P.3d 1260, 1272 (Colo. 2023) (finding that a keyword warrant constitutes a search, but only under Colorado’s Constitution and not the Fourth Amendment), and Commonwealth v. Clements, 113 Va. Cir. 576, 591 (2024) (finding that the government engaged in a Fourth Amendment search when it employed a keyword warrant). No federal court has published an opinion addressing the question. ↑
  12.  See Kurtz, 294 A.3d at 521–23 (engaging exclusively with the Katz reasonable expectation of privacy framework when considering whether a keyword warrant is a search); Seymour, 536 P.3d at 1270–72 (same); Clements, 113 Va. Cir. at 590–91 (same). ↑

Free Speech as White Privilege: Racialization, Suppression, and the Palestine Exception

Introduction

Free speech is under siege. This is not to say that all speakers and viewpoints are at equal risk—some voices receive support and protection, while others are subject to threats and suppression. Pro-Palestinian speech falls into the latter category. Critics argue that there has long been a “Palestine Exception” to free speech,1 1.See Palestine Legal, The Palestine Exception to Free Speech: A Movement Under Attack in the US 4–5 (2015), https://static1.squarespace.com/static/548748b1e4b083fc03ebf70e/t/56‌0c2e0ae4b083d9c363801d/1443638794172/Palestine+Exception+Report+Final.pdf [https://‌perma.cc/W4JT-79UR].Show Morebut attempts to silence pro-Palestinian advocacy have dramatically increased since Israel began its assault on Gaza in October of 2023. This assault was launched after incursions by Hamas militants that killed approximately 1,200 Israelis.2 2.See Patrick Kingsley, Aaron Boxerman, Natan Odenheimer, Ronen Bergman & Marco Hernandez, The Day Hamas Came, N.Y. Times (Dec. 22, 2023), https://www.nytimes.com/int‌eractive/2023/12/22/world/europe/beeri-massacre.html.Show MoreIn response, Israel has killed more than forty-six thousand Palestinians to date3 3.See Emma Graham-Harrison, The Devastating Impact of 15 Months of War on Gaza, The Guardian (Jan. 15, 2025, 2:26 PM), https://www.theguardian.com/world/2025/jan/15/the-dev‌astating-impact-of-15-months-of-war-on-gaza. This figure is based on reports from Gaza health officials. Id. An analysis by outside experts estimates that the number of deaths resulting from traumatic injury in Gaza is actually far higher, having reached 64,000 by June 2024. See Zeina Jamaluddine, Hanan Abukmail, Sarah Aly, Oona M R Campbell & Francesco Checchi, Traumatic Injury Mortality in the Gaza Strip From Oct. 7, 2023, to June 30, 2024: A Capture-Recapture Analysis, 405 Lancet 469, 469 (Feb. 8, 2025). If indirect deaths from destroyed health care infrastructure, lack of shelter, illness, and related factors are included, the total death count attributable to Israel’s military actions may exceed 186,000. See Rasha Khatib, Martin McKee & Salim Yusuf, Counting the Dead in Gaza: Difficult but Essential, 404 Lancet 237, 237 (July 10, 2024).Show Moreand left over two million on the brink of famine and disease.4 4.See Mark Landler, Nowhere to Go: How Gaza Became a Mass Death Trap, N.Y. Times (Oct. 7, 2024), https://www.nytimes.com/2024/10/07/world/middleeast/gaza-civilians-deaths‌-israel-war.html; Matthew Mpoke Bigg, Gazans Are so Malnourished that They Could Face Famine, Report Warns, N.Y. Times (Oct. 18, 2024), https://www.nytimes.com/2024/10/17/w‌orld/middleeast/gaza-malnourished-famine-warnings.html.Show MoreThe scale of destruction has been so vast that a United Nations Special Rapporteur has concluded that there are “reasonable grounds” to believe that Israel has been committing genocide in Gaza,5 5.Francesca Albanese, Hum. Rts. Council, Anatomy of a Genocide: Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, at 1, U.N. Doc. A/HRC/55/73 (July 1, 2024) https://www.un.org/unispal/document/anat‌omy-of-a-genocide-report-of-the-special-rapporteur-on-the-situation-of-human-rights-in-the-palestinian-territory-occupied-since-1967-to-human-rights-council-advance-unedited-versio‌n-a-hrc-55/ [https://perma.cc/7HHL-87FE].Show Moreand at least one U.S. Federal District Court has likewise found that Israel’s actions “may plausibly constitute a genocide in violation of international law.”6 6.Def. for Child. Int’l-Palestine v. Biden, 714 F. Supp. 3d 1160, 1163 (N.D. Cal. 2024).Show More

This devastating war on Gaza has inspired widespread protests in support of Palestine on campuses and in cities across America,7 7.See A Snapshot of Support for Palestinians Across America, N.Y. Times (Nov. 7, 2023), https://www.nytimes.com/2023/11/04/us/protests-israels-gaza.html; Colbi Edmonds, Anna Betts & Anemona Hartocollis, What to Know About the Campus Protests Over the Israel-Hamas War, N.Y. Times (Apr. 28, 2024), https://www.nytimes.com/2024/04/17/us/college-protests-israel-hamas-war-antisemitism.html.Show Morewhich has in turn elicited fierce backlash from defenders of Israel in government and other positions of authority.8 8.See Lisa Lerer & Rebecca Davis O’Brien, In Protests Against Israel Strikes, G.O.P. Sees ‘Woke Agenda’ at Colleges, N.Y. Times (Nov. 1, 2023), https://www.nytimes.com/2023/11/0‌1/us/politics/republicans-israel-war-protests-college-campuses.html.Show MoreMuch of this backlash has directly impinged upon academic freedom. While definitions of academic freedom may vary,9 9.See, e.g., Erwin Chemerinsky, Education, The First Amendment, and the Constitution, 92 U. Cin. L. Rev. 12, 14 (2023) (treating academic freedom as “the belief that teachers should be able to express themselves in their classrooms and in their scholarship, and students should be able to express themselves as well”); Robert C. Post, Academic Freedom and Legal Scholarship, 64 J. Legal Educ. 530, 533 (2015) (conceptualizing academic freedom as the right of a scholar to pursue their research and ideas freely); Am. Ass’n of Univ. Professors, 1940 Statement of Principles on Academic Freedom and Tenure, https://www.aaup.org/report/‌1940-statement-principles-academic-freedom-and-tenure [https://perma.cc/VN9D-4V5T].Show Morethe concept should at least encompass the right of the academic community to engage in research, teaching, and debate to advance knowledge and understanding on matters of public concern. Responses to pro-Palestinian speech in higher education have clearly compromised these values. Students have been arrested and subjected to institutional sanctions;10 10.See Where Protestors on U.S. Campuses Have Been Arrested or Detained, N.Y. Times (July 22, 2024, 8:30 PM), https://www.nytimes.com/interactive/2024/us/pro-palestinian-colle‌ge-protests-encampments.html.Show Morefaculty members have been censured and terminated;11 11.Anemona Hartocollis, Professors in Trouble Over Protests Wonder if Academic Freedom Is Dying, N.Y. Times (Oct. 23, 2024), https://www.nytimes.com/2024/10/23/us/faculty-protes‌ts-academic-freedom-tenure-discipline.html; see also Stephanie Saul, Columbia Professor Says She Was Pushed to Retire Because of Her Activism, N.Y. Times (Jan. 10, 2025), https://‌www.nytimes.com/2025/01/10/us/columbia-professor-katherine-franke-retires.html (detailing how Columbia University faculty members were subject to investigation based on their advocacy on behalf of pro-Palestinian students).Show Moreand universities have been threatened with the prospect of losing their federal funding and accreditation if they allow pro-Palestinian protests on campus.12 12.See Ed Pilkington, Republicans Threaten to Punish Colleges That Allow Pro-Palestinian Protests, The Guardian (Oct. 9, 2024, 5:00 AM), https://www.theguardian.com/us-news/2024/‌oct/09/republicans-crackdown-universities-pro-palestinian-protests.Show More

Many supporters of Israel contend that restrictions on pro-Palestinian advocacy at colleges and universities are justified, arguing that much of this speech is antisemitic and makes some Jewish students feel unsafe.13 13.See Zach Montague, Campus Protest Investigations Hang Over Schools as New Academic Year Begins, N.Y. Times(Oct. 5, 2024), https://www.nytimes.com/2024/10/05/us/‌politics/college-campus-protests-investigations.html.Show MoreOthers have suggested that there is a double standard between racism and antisemitism at play when universities fail to condemn some forms of pro-Palestinian speech, especially when speakers express support for Hamas’s 2023 attack. For example, Berkeley School of Law Dean Erwin Chemerinsky asked in the pages of the New York Times if “anyone [thought] the officials would be silent if there was a Ku Klux Klan gathering on a college campus celebrating white supremacist violence?”14 14.Erwin Chemerinsky, College Officials Must Condemn On-Campus Support for Hamas Violence, N.Y. Times (Oct. 20, 2024), https://www.nytimes.com/2024/10/20/opinion/hamas-colleges-free-speech.html. Black and Jewish student groups at Berkeley issued statements criticizing Chemerinsky’s piece, arguing that it “misappropriates Black suffering” and “weaponizes concerns for Jewish safety to manufacture further consent for a genocide.” Berkeley J. of Black L. & Pol’y & Berkeley L. Jews for Palestine, ‘Hypocritical and Insulting’: Black and Jewish Students at Berkeley Law Say Dean Chemerinsky Uses Them as Props to Vilify Palestine Solidarity Movement, Daily Californian (Oct. 25, 2024), https://www‌.dailycal.org/opinion/op-eds/hypocritical-and-insulting-black-and-jewish-students-at-berkele‌y-law-say-dean-chemerinsky-uses-them/article_9cbe4ccc-9299-11ef-bec1-83f03a661cc9.h‌tml [https://perma.cc/CY4X-M4VQ].Show MoreSimilarly, former Harvard University President Lawrence Summers declared it to be “inconceivable that the University would allow a Ku Klux Klan-allied student group to be recognized with access to funds and listservs.”15 15.See Emma H. Haidar & Cam E. Kettles, Garber’s Statement on the PSC Ignites Controversy Over Institutional Voice Policy, Harv. Crimson (Oct. 10, 2024), https://www.thec‌rimson.com/article/2024/10/10/garber-psc-statement-institutional-voice/ [https://perma.cc/G‌VD6-U3G2].Show MoreThe implication seems to be that the kind of anti-Black speech associated with the Klan would never be tolerated on college campuses, and that racialized minorities have been a special favorite of legal and institutional protection against hateful expression.

The problem with this argument is that it is demonstrably false. Not so very long ago, during my own time as a Harvard undergraduate, the Institute of Politics invited former Ku Klux Klan Grand Wizard David Duke to speak at the University’s Kennedy School of Government—and apparently had the audacity to ask the Black Student Association to cosponsor the event.16 16.See Anna D. Wilde, BSA Will Not Sponsor Duke, Harv. Crimson (Dec. 19, 1991), https://‌www.thecrimson.com/article/1991/12/19/bsa-will-not-sponsor-duke-pthe/ [https://perma.cc/‌FU7D-EQRB].Show MoreLeaders of student groups ranging from the Harvard Democrats to the Harvard Republican Club to Harvard-Radcliffe Hillel were all quoted as supporting Duke’s right to speak on campus even if they disapproved of his message.17 17.See Jonathan Samuels, Campus Groups Unite to Protest Possible Duke Visit, Harv. Crimson (Feb. 22, 1992), https://www.thecrimson.com/article/1992/2/22/campus-groups-unit‌e-to-protest-possible/ [https://perma.cc/SJA5-YVPB].Show MoreA few months before that, a student was permitted to hang a Confederate flag from the entryway of her dormitory for several weeks despite its obvious connections to white supremacy and notwithstanding the strong objections and emotional pleas advanced by Black students.18 18.See S. Allen Counter Jr., The Hurtful Confederate Flag at Harvard, Harv. Crimson (Oct. 22, 2015), https://www.thecrimson.com/article/2015/10/22/allen-counter-confederate-flag/ [https://perma.cc/DRN5-5KUH].Show MoreNor has toleration of racist imagery and rhetoric been confined to the university setting. To the contrary, free speech doctrines have broadly and consistently functioned to give white people the liberty to engage in hateful speech and to deny Black, Brown, and other racialized individuals the kinds of protection from fear and harm that supporters of Israel are now demanding. In other words, the Palestine Exception to free speech is real—and it is part of a deeper legal tradition that has enshrined free speech as an element of white privilege.

The remainder of this Essay illustrates the nexus between free speech and white privilege in the following way. Part I reviews the case law to document the courts’ consistent refusal to limit racist expression by white actors targeting racialized groups. Part II then analyzes the ways in which the law has racialized Palestinians and Muslims as being both worthy of condemnation by hateful speakers and undeserving of legal protection for their own advocacy. Part III situates attacks on pro-Palestinian speech in the context of the wider movement to silence critical voices and scholarship. Finally, this Essay concludes by emphasizing the importance of academic freedom as a means of amplifying suppressed voices and advancing narratives that challenge existing allocations of power and privilege.

  1.  See Palestine Legal, The Palestine Exception to Free Speech: A Movement Under Attack in the US 4–5 (2015), https://static1.squarespace.com/static/548748b1e4b083fc03ebf70e/t/56‌0c2e0ae4b083d9c363801d/1443638794172/Palestine+Exception+Report+Final.pdf [https://‌perma.cc/W4JT-79UR]. ↑
  2.  See Patrick Kingsley, Aaron Boxerman, Natan Odenheimer, Ronen Bergman & Marco Hernandez, The Day Hamas Came, N.Y. Times (Dec. 22, 2023), https://www.nytimes.com/int‌eractive/2023/12/22/world/europe/beeri-massacre.html. ↑
  3.  See Emma Graham-Harrison, The Devastating Impact of 15 Months of War on Gaza, The Guardian (Jan. 15, 2025, 2:26 PM), https://www.theguardian.com/world/2025/jan/15/the-dev‌astating-impact-of-15-months-of-war-on-gaza. This figure is based on reports from Gaza health officials. Id. An analysis by outside experts estimates that the number of deaths resulting from traumatic injury in Gaza is actually far higher, having reached 64,000 by June 2024. See Zeina Jamaluddine, Hanan Abukmail, Sarah Aly, Oona M R Campbell & Francesco Checchi, Traumatic Injury Mortality in the Gaza Strip From Oct. 7, 2023, to June 30, 2024: A Capture-Recapture Analysis, 405 Lancet 469, 469 (Feb. 8, 2025). If indirect deaths from destroyed health care infrastructure, lack of shelter, illness, and related factors are included, the total death count attributable to Israel’s military actions may exceed 186,000. See Rasha Khatib, Martin McKee & Salim Yusuf, Counting the Dead in Gaza: Difficult but Essential, 404 Lancet 237, 237 (July 10, 2024). ↑
  4.  See Mark Landler, Nowhere to Go: How Gaza Became a Mass Death Trap, N.Y. Times (Oct. 7, 2024), https://www.nytimes.com/2024/10/07/world/middleeast/gaza-civilians-deaths‌-israel-war.html; Matthew Mpoke Bigg, Gazans Are so Malnourished that They Could Face Famine, Report Warns, N.Y. Times (Oct. 18, 2024), https://www.nytimes.com/2024/10/17/w‌orld/middleeast/gaza-malnourished-famine-warnings.html. ↑
  5.  Francesca Albanese, Hum. Rts. Council, Anatomy of a Genocide: Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, at 1, U.N. Doc. A/HRC/55/73 (July 1, 2024) https://www.un.org/unispal/document/anat‌omy-of-a-genocide-report-of-the-special-rapporteur-on-the-situation-of-human-rights-in-the-palestinian-territory-occupied-since-1967-to-human-rights-council-advance-unedited-versio‌n-a-hrc-55/ [https://perma.cc/7HHL-87FE]. ↑
  6.  Def. for Child. Int’l-Palestine v. Biden, 714 F. Supp. 3d 1160, 1163 (N.D. Cal. 2024). ↑
  7.  See A Snapshot of Support for Palestinians Across America, N.Y. Times (Nov. 7, 2023), https://www.nytimes.com/2023/11/04/us/protests-israels-gaza.html; Colbi Edmonds, Anna Betts & Anemona Hartocollis, What to Know About the Campus Protests Over the Israel-Hamas War, N.Y. Times (Apr. 28, 2024), https://www.nytimes.com/2024/04/17/us/college-protests-israel-hamas-war-antisemitism.html. ↑
  8.  See Lisa Lerer & Rebecca Davis O’Brien, In Protests Against Israel Strikes, G.O.P. Sees ‘Woke Agenda’ at Colleges, N.Y. Times (Nov. 1, 2023), https://www.nytimes.com/2023/11/0‌1/us/politics/republicans-israel-war-protests-college-campuses.html. ↑
  9.  See, e.g., Erwin Chemerinsky, Education, The First Amendment, and the Constitution, 92 U. Cin. L. Rev. 12, 14 (2023) (treating academic freedom as “the belief that teachers should be able to express themselves in their classrooms and in their scholarship, and students should be able to express themselves as well”); Robert C. Post, Academic Freedom and Legal Scholarship, 64 J. Legal Educ. 530, 533 (2015) (conceptualizing academic freedom as the right of a scholar to pursue their research and ideas freely); Am. Ass’n of Univ. Professors, 1940 Statement of Principles on Academic Freedom and Tenure, https://www.aaup.org/report/‌1940-statement-principles-academic-freedom-and-tenure [https://perma.cc/VN9D-4V5T]. ↑
  10.  See Where Protestors on U.S. Campuses Have Been Arrested or Detained, N.Y. Times (July 22, 2024, 8:30 PM), https://www.nytimes.com/interactive/2024/us/pro-palestinian-colle‌ge-protests-encampments.html. ↑
  11.  Anemona Hartocollis, Professors in Trouble Over Protests Wonder if Academic Freedom Is Dying, N.Y. Times (Oct. 23, 2024), https://www.nytimes.com/2024/10/23/us/faculty-protes‌ts-academic-freedom-tenure-discipline.html; see also Stephanie Saul, Columbia Professor Says She Was Pushed to Retire Because of Her Activism, N.Y. Times (Jan. 10, 2025), https://‌www.nytimes.com/2025/01/10/us/columbia-professor-katherine-franke-retires.html (detailing how Columbia University faculty members were subject to investigation based on their advocacy on behalf of pro-Palestinian students). ↑
  12.  See Ed Pilkington, Republicans Threaten to Punish Colleges That Allow Pro-Palestinian Protests, The Guardian (Oct. 9, 2024, 5:00 AM), https://www.theguardian.com/us-news/2024/‌oct/09/republicans-crackdown-universities-pro-palestinian-protests. ↑
  13.  See Zach Montague, Campus Protest Investigations Hang Over Schools as New Academic Year Begins, N.Y. Times

    (Oct. 5, 2024), https://www.nytimes.com/2024/10/05/us/‌politics/college-campus-protests-investigations.html. ↑

  14.  Erwin Chemerinsky, College Officials Must Condemn On-Campus Support for Hamas Violence, N.Y. Times (Oct. 20, 2024), https://www.nytimes.com/2024/10/20/opinion/hamas-colleges-free-speech.html. Black and Jewish student groups at Berkeley issued statements criticizing Chemerinsky’s piece, arguing that it “misappropriates Black suffering” and “weaponizes concerns for Jewish safety to manufacture further consent for a genocide.” Berkeley J. of Black L. & Pol’y & Berkeley L. Jews for Palestine, ‘Hypocritical and Insulting’: Black and Jewish Students at Berkeley Law Say Dean Chemerinsky Uses Them as Props to Vilify Palestine Solidarity Movement, Daily Californian (Oct. 25, 2024), https://www‌.dailycal.org/opinion/op-eds/hypocritical-and-insulting-black-and-jewish-students-at-berkele‌y-law-say-dean-chemerinsky-uses-them/article_9cbe4ccc-9299-11ef-bec1-83f03a661cc9.h‌tml [https://perma.cc/CY4X-M4VQ]. ↑
  15.  See Emma H. Haidar & Cam E. Kettles, Garber’s Statement on the PSC Ignites Controversy Over Institutional Voice Policy, Harv. Crimson (Oct. 10, 2024), https://www.thec‌rimson.com/article/2024/10/10/garber-psc-statement-institutional-voice/ [https://perma.cc/G‌VD6-U3G2]. ↑
  16.  See Anna D. Wilde, BSA Will Not Sponsor Duke, Harv. Crimson (Dec. 19, 1991), https://‌www.thecrimson.com/article/1991/12/19/bsa-will-not-sponsor-duke-pthe/ [https://perma.cc/‌FU7D-EQRB]. ↑
  17.  See Jonathan Samuels, Campus Groups Unite to Protest Possible Duke Visit, Harv. Crimson (Feb. 22, 1992), https://www.thecrimson.com/article/1992/2/22/campus-groups-unit‌e-to-protest-possible/ [https://perma.cc/SJA5-YVPB]. ↑
  18.  See S. Allen Counter Jr., The Hurtful Confederate Flag at Harvard, Harv. Crimson (Oct. 22, 2015), https://www.thecrimson.com/article/2015/10/22/allen-counter-confederate-flag/ [https://perma.cc/DRN5-5KUH]. ↑

Judicial Review of Emergency Powers in Banking and Financial Regulation

Banking and finance are arcane industries that often elude popular understanding, so courts, Congress, and the American public have largely delegated their regulation to federal agencies with considerable decision-making autonomy, affecting trillions of public and private dollars. Some regulatory powers, however, have the potential to destabilize the financial system. Yet for forty years, courts deferred to these agencies under the Chevron doctrine.

Over the past three years, the Supreme Court of the United States has generally curtailed the administrative state’s role in policy-making by overturning Chevron and enunciating the major questions doctrine. Deference to agencies plays a special role in banking and financial regulation as open-ended emergency provisions facilitate crisis response. But on several occasions since the 2008 financial crisis, agencies have misused these powers by invoking them routinely or when an emergency is not really afoot. If these regulators “cry wolf” too often, they create perverse incentives that heighten the risk of financial turmoil.

This Essay argues that the Court’s recent skepticism toward the administrative state is a positive development for banking and financial regulation. While courts should not totally abrogate regulatory discretion in this field of law, a stronger threat of judicial review could encourage agencies to reserve emergency powers for genuine crises. This will deter them from “crying wolf” to abuse their emergency powers, promote stability and transparency in regulatory decision-making, and better prepare the country for future financial crises.

Introduction

“Let us control the money of a country and we care not who makes its laws.”1 1.Investigation of the Money Trust: Hearings on H.R. 314 and H.R. 356 Before the H. Comm. on Rules, 62d Cong. 40 (1912) (statement of Mr. T. Cushing Daniel, author of “Daniel on Real Money”). The maxim is frequently—probably apocryphally—attributed to Mayer Amschel Rothschild (1744–1812), founder of the Rothschild banking dynasty. Id. But its sentiment—that money is more powerful than even law itself—rings true today. In 2011, just shy of one hundred years since it was spoken in a congressional hearing on regulating Wall Street, see id., a variation of the maxim appeared scrawled on a cardboard sign at the Occupy Wall Street protest. Photograph of Cardboard Sign (OWS_190b), in N.Y. Hist. Soc’y Shelby White & Leon Levy Digit. Libr., Occupy Wall Street Signs and Posters (2011), https://digitalc‌ollections.nyhistory.org/islandora/object/nyhs%3A169816 [https://perma.cc/NQA6-DRBT]. ↑Show More

The Roberts Court’s scrutiny of the administrative state escalated in June 2024 when it overturned the forty-year-old doctrine of Chevron deference2 2.Amy Howe, Supreme Court Strikes Down Chevron, Curtailing Power of Federal Agencies, SCOTUSblog (June 28, 2024, 12:37 PM), https://www.scotusblog.com/2024/06/su‌preme-court-strikes-down-chevron-curtailing-power-of-federal-agencies/ [https://perma.cc/Y‌UF7-FASL]. “Chevron deference” refers to the Supreme Court’s 1984 decision to defer to agencies’ interpretations of ambiguous statutes. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), overruled by Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024). Some commentators predict the Court may soon go further in this direction by holding that broad delegations to agencies are altogether unconstitutional. Cydney Posner, Will SCOTUS Revive the Nondelegation Doctrine?, Harv. L. Sch. F. on Corp. Governance (Dec. 19, 2024), https://corpgov.law.harvard.edu/2024/12/19/will-scotus-revive-the-nondeleg‌ation-doctrine/ [https://perma.cc/RU5U-UQX7].Show Morein Loper Bright Enterprises v. Raimondo.3 3.Loper Bright, 144 S. Ct. 2244.Show MoreThis decision reaffirmed the Court’s skeptical stance on executive agencies in line with its decisions in Biden v. Nebraska4 4.143 S. Ct. 2355, 2368 (2023) (characterizing the Secretary of Education’s interpretation of the HEROES Act as an attempt to “rewrite that statute from the ground up”).Show Morein 2023 and West Virginia v. EPA5 5.142 S. Ct. 2587, 2614 (2022) (rejecting the Environmental Protection Agency’s “newly uncovered” interpretation that would have “conveniently enabled it to enact a program” that Congress had rejected).Show Morethe year before. Many legal commentators join Justice Kagan, who wrote a foreboding dissent in Loper Bright, in predicting that Chevron’s overturn will disrupt the legal system for the worse.6 6.See, e.g., Michael M. Epstein, Agency Deference After Loper: Expertise as a Casualty of a War Against the “Administrative State,” 89 Brook. L. Rev. 871 (2024); see also Loper Bright, 144 S. Ct. at 2295 (Kagan, J., dissenting) (“In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law.”).Show MoreAnd they may well be right. But for at least one area of the law—banking and financial regulation—Chevron’s demise is a positive development.7 7.For an argument that Chevron helped cause the 2008 financial crisis by letting regulators expand “the business of banking,” see Todd Phillips, Chevron and Banking Law: What’s Good for the Goose Isn’t Good for the Gander, Yale J. on Regul.: Notice & Comment (May 2, 2024), https://www.yalejreg.com/nc/chevron-and-banking-law-whats-good-for-the-goose-isnt-good‌-for-the-gander/ [https://perma.cc/G7KN-PJJW].Show More

Principal regulators in this field include the Federal Reserve (“Fed”), the Federal Deposit Insurance Corporation (“FDIC” or “Corporation”), and the Financial Stability Oversight Council (“FSOC” or “Council”). Congress granted these agencies elaborate statutory mandates aimed at safeguarding the stability of the United States financial system. Since the 2008 financial crisis, however, regulators have exploited broad provisions buried in these mandates to take risky and unprecedented action. But the Supreme Court’s new stance on the administrative state may halt that trend.

This Essay argues that stronger judicial review of banking and financial regulators will make the financial system sounder by encouraging wiser use of regulatory tools. Part I discusses why excessive agency involvement poses risks to the financial system, primarily by creating moral hazard. Part II covers three statutory provisions regulators questionably invoked during and after the 2008 financial crisis to justify more frequent intervention. Part III examines some judicial levers the Supreme Court has pulled to limit agency discretion in other contexts, and it predicts how and when the Court may use them to check banking and financial regulators in the future.

  1.  Investigation of the Money Trust: Hearings on H.R. 314 and H.R. 356 Before the H. Comm. on Rules, 62d Cong. 40 (1912) (statement of Mr. T. Cushing Daniel, author of “Daniel on Real Money”). The maxim is frequently—probably apocryphally—attributed to Mayer Amschel Rothschild (1744–1812), founder of the Rothschild banking dynasty. Id. But its sentiment—that money is more powerful than even law itself—rings true today. In 2011, just shy of one hundred years since it was spoken in a congressional hearing on regulating Wall Street, see id., a variation of the maxim appeared scrawled on a cardboard sign at the Occupy Wall Street protest. Photograph of Cardboard Sign (OWS_190b), in N.Y. Hist. Soc’y Shelby White & Leon Levy Digit. Libr., Occupy Wall Street Signs and Posters (2011), https://digitalc‌ollections.nyhistory.org/islandora/object/nyhs%3A169816 [https://perma.cc/NQA6-DRBT]. ↑
  2.  Amy Howe, Supreme Court Strikes Down Chevron, Curtailing Power of Federal Agencies, SCOTUSblog (June 28, 2024, 12:37 PM), https://www.scotusblog.com/2024/06/su‌preme-court-strikes-down-chevron-curtailing-power-of-federal-agencies/ [https://perma.cc/Y‌UF7-FASL]. “Chevron deference” refers to the Supreme Court’s 1984 decision to defer to agencies’ interpretations of ambiguous statutes. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), overruled by Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024). Some commentators predict the Court may soon go further in this direction by holding that broad delegations to agencies are altogether unconstitutional. Cydney Posner, Will SCOTUS Revive the Nondelegation Doctrine?, Harv. L. Sch. F. on Corp. Governance (Dec. 19, 2024), https://corpgov.law.harvard.edu/2024/12/19/will-scotus-revive-the-nondeleg‌ation-doctrine/ [https://perma.cc/RU5U-UQX7]. ↑
  3.  Loper Bright, 144 S. Ct. 2244. ↑
  4.  143 S. Ct. 2355, 2368 (2023) (characterizing the Secretary of Education’s interpretation of the HEROES Act as an attempt to “rewrite that statute from the ground up”). ↑
  5.  142 S. Ct. 2587, 2614 (2022) (rejecting the Environmental Protection Agency’s “newly uncovered” interpretation that would have “conveniently enabled it to enact a program” that Congress had rejected). ↑
  6.  See, e.g., Michael M. Epstein, Agency Deference After Loper: Expertise as a Casualty of a War Against the “Administrative State,” 89 Brook. L. Rev. 871 (2024); see also Loper Bright, 144 S. Ct. at 2295 (Kagan, J., dissenting) (“In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law.”). ↑

  7.  For an argument that Chevron helped cause the 2008 financial crisis by letting regulators expand “the business of banking,” see Todd Phillips, Chevron and Banking Law: What’s Good for the Goose Isn’t Good for the Gander, Yale J. on Regul.: Notice & Comment (May 2, 2024), https://www.yalejreg.com/nc/chevron-and-banking-law-whats-good-for-the-goose-isnt-good‌-for-the-gander/ [https://perma.cc/G7KN-PJJW]. ↑

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