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The “New” Drug War

American policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those who engage in it as deviant criminals. The War on Drugs has been defined by a myopic focus on controlling the supply of drugs that are labeled as dangerous and addictive. The decisions as to which drugs fall within these categories have neither been made by health agencies nor based on scientific evidence. Instead, law enforcement agencies have been at the helm of the drug war advocating for and enforcing prohibition.

The drug war has been a failure on all counts. American taxpayers have invested trillions of dollars in the war, yet the United States continues to witness record-setting numbers of drug overdose deaths every year. The drug war has been used as a tool to disenfranchise and incarcerate generations of individuals minoritized as Black. Black Americans are nearly six times more likely to be incarcerated for drug-related offenses than their white counterparts, notwithstanding that substance use rates are comparable across those populations.

The public rhetoric concerning drug use has notably changed in recent years. Many policymakers have replaced the punitive, law-and-order narratives of the Old Drug War with progressive, public-health-oriented language, which suggests that the Old Drug War has ended. We, however, caution against such a conclusion. This paper examines three categories of laws and policies that attend to individuals who use drugs under our country’s new, and purportedly public-health-centric, approach: (1) laws that increase surveillance of certain drugs or those who use them; (2) the criminalization and civil punishment of the symptoms or behaviors related to drug use; and (3) laws that decrease access to treatment and harm reduction programs.

Our assessment of these policies demonstrates that the War on Drugs is not over. It has merely been retooled, recalibrated, and reframed. The “New” Drug War may be concealed with public-health-promoting rhetoric, but it is largely an insidious re-entrenchment of the country’s longstanding, punitive approach to drug use.

Introduction

Since the 1800s, American policymakers have waged a racist,1 1.andré douglas pond cummings & Steven A. Ramirez, Roadmap for Anti-Racism: First Unwind the War on Drugs Now, 96 Tul. L. Rev. 469, 469–70 (2022) (“The War on Drugs (WOD) transmogrified into a war on communities of color early in its history, and its impact has devastated communities of color first and foremost. People of color disproportionately suffer incarceration in the WOD even though people of color use illegal narcotics at substantially lower rates than white Americans.” (footnotes omitted)); Paul Butler, Chokehold: Policing Black Men 122 (2017) (noting “that ‘the war on drugs’ has been selectively waged against African Americans. . . . For drug crimes, African Americans are about 13 percent of people who do the crime, but about 60 percent of people who do the time.”).Show More costly,2 2.Juhohn Lee, America Has Spent Over a Trillion Dollars Fighting the War on Drugs. 50 Years Later, Drug Use in the U.S. Is Climbing Again, CNBC (June 17, 2021, 1:15 PM), https://www.cnbc.com/2021/06/17/the-us-has-spent-over-a-trillion-dollars-fighting-war-on-d‌rugs.html [https://perma.cc/9BAL-Y45A].Show More and punitive3 3.Nkechi Taifa, Race, Mass Incarceration, and the Disastrous War on Drugs, Brennan Ctr. for Just. (May 10, 2021), https://www.brennancenter.org/our-work/analysis-opinion/race-mas‌s-incarceration-and-disastrous-war-drugs [https://perma.cc/54XD-6FGH] (explaining how increasingly punitive drug “laws flooded the federal system with people convicted of low-level and nonviolent drug offenses”); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 6–11 (rev. ed. 2020) (detailing how the War on Drugs led to mass incarceration).Show More drug war that characterizes some drug use as morally reprehensible behavior and those who engage in it as deviant criminals.4 4.Taleed El-Sabawi, Defining the Opioid Epidemic: Congress, Pressure Groups, and Problem Definition, 48 U. Mem. L. Rev. 1357, 1390–91 (2018) [hereinafter El-Sabawi, Defining the Opioid Epidemic].Show More The War on Drugs5 5.Michael Tonry, Race and the War on Drugs, 1994 U. Chi. Legal F. 25, 25‒26 (1994) (defining the War on Drugs as an initiative reinforced by the Reagan and Bush Administrations to reduce drug trade and use by means of education and treatment components with much emphasis on law enforcement).Show More myopically focuses on controlling the supply of drugs deemed dangerous and addictive through prohibition and deterring their sale and possession through arrest and incarceration.6 6.Taleed El-Sabawi & Jennifer Oliva, The Influence of White Exceptionalism on Drug War Discourse, 94 Temp. L. Rev. 649, 649 (2022); see David T. Courtwright, A Century of American Narcotic Policy, in 2 Treating Drug Problems 1, 42 (Dean R. Gerstein & Henrick J. Harwood eds., 1992) (“The sense that illicit drug trafficking and use were out of control led to the present war on drugs.”); Mona Lynch, Theorizing the Role of the ‘War on Drugs’ in US Punishment, 16 Theoretical Criminology 175, 178–79 (2012) (describing specific legislation that criminally punishes both possession and sale of drugs based on “their combined medical value, harmfulness to health, and addictive properties”).Show More American government officials’ simplistic justifications for centering drug policy around supply control include their commitment to the notion that people only use drugs because they are available and, once they are no longer available, people will neither initiate nor continue drug use.7 7.Nat’l Rsch. Council, Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us 139 (Charles F. Manski, John V. Pepper & Carol V. Petrie eds., 2001).Show More

Upon superficial examination, limiting access to potentially dangerous drugs sounds like a promising approach to address drug misuse and poisoning problems. A litany of actual evidence, however, suggests that supply control measures steeped in criminal legal theories of deterrence are ineffective at decreasing overdoses and substance use disorders.8 8.See, e.g., Ojmarrh Mitchell, Ineffectiveness, Financial Waste, and Unfairness: The Legacy of the War on Drugs, 32 J. Crime & Just. 1, 7–10 (2009); Evan Wood et al., Impact of Supply-Side Policies for Control of Illicit Drugs in the Face of the AIDS and Overdose Epidemics: Investigation of a Massive Heroin Seizure, 168 Canadian Med. Ass’n J. 165, 168 (2003).Show More This is because those tactics fail to address any of the underlying causes of drug demand, facilitate an unpredictable and ever more dangerous drug supply, and often result in the substitution of one drug for another, more potent drug.9 9.Leo Beletsky & Corey S. Davis, Today’s Fentanyl Crisis: Prohibition’s Iron Law, Revisited, 46 Int’l J. Drug Pol’y 156, 156–58 (2017); see also Johanna Catherine Maclean, Justine Mallatt, Christopher J. Ruhm & Kosali Simon, Economic Studies on the Opioid Crisis: A Review 1, 15, 19 (Nat’l Bureau of Econ. Rsch., Working Paper No. 28067, 2021), https://w‌ww.nber.org/system/files/working_papers/w28067/w28067.pdf [https://perma.cc/FRN9-D7‌WB] (explaining that opioid “overdose deaths rose 9.1 percent from March 2019 to March 2020” despite “policy efforts to address the crisis,” certain prescription drug monitoring programs “lead[] to increased heroin-related crime,” and that other programs addressing OxyContin misuse “spurred development of illicit drug markets”); Meghan Peterson et al., “One Guy Goes to Jail, Two People Are Ready to Take His Spot”: Perspectives on Drug-Induced Homicide Laws Among Incarcerated Individuals, 70 Int’l J. Drug Pol’y 47, 52 (2019) (concluding that drug policies were “not . . . effective in mitigating overdose risk and could induce harm” instead).Show More

Interdiction efforts alone have cost American taxpayers more than a trillion dollars over the last several decades.10 10.Christopher J. Coyne & Abigail R. Hall, Four Decades and Counting: The Continued Failure of the War on Drugs, 811 Cato Inst. Pol’y Analysis, Apr. 2017, at 1, 19, https://www.ca‌to.org/sites/cato.org/files/pubs/pdf/pa-811-updated.pdf [https://perma.cc/LA3Z-VSUU].Show More Federal, state, and local governments spend an estimated 47.9 billion dollars annually on drug enforcement.11 11.Jeffery Miron, The Budgetary Effects of Ending Drug Prohibition, 83 Cato Inst. Tax & Budget Bull., July 23, 2018, https://www.cato.org/tax-budget-bulletin/budgetary-effects-endi‌ng-drug-prohibition [https://perma.cc/WN7F-PRPQ].Show More Despite the substantial funding dedicated to the War on Drugs, American overdose deaths have reached historic levels. According to the Centers for Disease Control and Prevention, the United States suffered a record 107,941 overdose deaths—the highest number of such fatalities ever cataloged in a single calendar year—in 2022.12 12.Merianne R. Spencer, Matthew F. Garnett & Arialdi M. Miniño, Drug Overdose Deaths in the United States, 2002–2022, 491 Nat’l Ctr. Health Stats. Data Brief 1, 1 (Mar. 2024), https://www.cdc.gov/nchs/data/databriefs/db491.pdf [https://perma.cc/5Q7J-4BBR]; Deidre McPhillips, US Drug Overdose Deaths, Fueled by Synthetic Opioids, Hit a New High in 2022, CNN (May 18, 2023, 11:27 AM), https://www.cnn.com/2023/05/18/health/drug-overdose-de‌aths-2022 [https://perma.cc/34SG-S3S7].Show More

The War on Drugs is not only costly. It has failed to mitigate both the escalating drug overdose deaths and the myriad poor health outcomes associated with chaotic drug use.13 13.Sessi Kuwabara Blanchard, The Beginner’s Guide to Harm Reduction, Healthline (Aug. 30, 2021), https://www.healthline.com/health/substance-use/harm-reduction [https://perma.‌cc/KEH6-LRH8] (explaining that substance use is experienced on a spectrum that varies from managed to chaotic use and defining chaotic use as “consumption [that] is no longer bound by self-regulation” where “the negative effects on [an individual’s] life outweigh the original benefits . . . from consuming drugs”).Show More The War on Drugs is also racist.14 14.See, e.g., John Hudak, Biden Should End America’s Longest War: The War on Drugs, Brookings Inst. (Sept. 24, 2021), https://www.brookings.edu/articles/biden-should-end-ame‌ricas-longest-war-the-war-on-drugs/ [https://perma.cc/GCK7-JEAW] (“Despite its dramatic policy failures, the War on Drugs has been wildly successful in one specific area: institutionalizing racism. The drug war was built on a foundation of racism and xenophobia.”).Show More In 2016, one of President Nixon’s top aides admitted that the War on Drugs was motived by Nixon’s desire to subordinate and disenfranchise Black persons and the antiwar left, whom Nixon identified as political enemies.15 15.Dan Baum, Legalize It All: How to Win the War on Drugs, Harper’s Mag. (Apr. 2016), https://harpers.org/archive/2016/04/legalize-it-all/ [https://perma.cc/W73S-PTNX]. Moreover, the harshness of the criminal penalties associated with a drug’s possession have been driven not by the “dangerousness” of the drug so much as the racial characteristics associated with the people who use that substance. Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality: Or Why the “War on Drugs” Was a “War on Blacks,” 6 J. Gender, Race & Just. 381, 396–98 (2002) (explaining that the dramatic federal sentencing disparity between crack and powder cocaine was unjustified from a physiological perspective because each is simply a different form of the same drug and that, instead, the dramatically more harsh criminal penalties that attended to crack cocaine were based on its use association with Black people (and, concomitantly, that the relatively less harsh criminal penalties that attended to powder cocaine were based on its use association with white people)); Brittany Arsiniega, Teresa Cosby, Spencer Richardson & Kylie Berube, Race and Prohibition Movements, 11 Tenn. J. Race, Gender & Soc. Just. 16, 19 (2021) (“Those drugs associated with minorities have been viewed by governmental majorities (and the public at large) as more harmful or dangerous than those consumed by white people and criminalized accordingly. Examples include crack cocaine versus powder cocaine and consumption of opium by smoking (associated with Chinese immigrants) versus oral consumption (associated with white people).” (footnotes omitted)).Show More The War on Drugs is, and always has been, fueled by stereotypical myths, racist beliefs, and a desire for political and societal control of racial minorities and others opposed to failed law and order-driven drug policies.16 16.See, e.g., Helena Hansen, Jules Netherland & David Herzberg, Whiteout: How Racial Capitalism Changed the Color of Opioids in America 36, 59 (2023) [hereinafter Hansen et al., Whiteout] (explaining that “[i]nherent in the effort of . . . policy makers . . . to distinguish licit from illicit drugs is an unspoken racial symbolism of white biology and Black crime” and “[f]or the last fifty years, . . . policy makers have invested heavily in the association between Black and Brown communities and illicit drug use and have used the threat of drugs to ramp up fears about Black and Brown people and to craft increasingly punitive policies that have been effective tools of racial targeting and control”).Show More

Evidenced by the framing of the current overdose crisis as a public health issue rather than a criminal legal problem, some argue that the War on Drugs is on the wane.17 17.Brian Mann, After 50 Years of the War on Drugs, ‘What Good Is It Doing for Us?’, NPR (June 17, 2021, 5:00 AM), https://www.npr.org/2021/06/17/1006495476/after-50-years-of-th‌e-war-on-drugs-what-good-is-it-doing-for-us [https://perma.cc/79UT-CQ2A] (contending that, in response to the current overdose crisis, “some of the most severe policies implemented during the drug war are being scaled back or scrapped altogether” “[i]n many parts of the U.S.,” while admitting that “much of the drug war’s architecture remains intact”).Show More There is no doubt that the rhetoric that drives the drug war has changed in recent years as policymakers have adopted “health-oriented” language to describe what has been popularly characterized as the “opioid overdose crisis.”18 18.Taleed El-Sabawi, The Role of Pressure Groups and Problem Definition in Crafting Legislative Solutions to the Opioid Crisis, 11 Ne. U. L. Rev. 372, 380, 395 (2019) (finding that a health-oriented approach was used by pressure groups during congressional hearings on the opioid crisis from 2014–2016); see also Max Weiss & Michael Zoorob, Political Frames of Public Health Crises: Discussing the Opioid Epidemic in the US Congress, 281 Soc. Sci. & Med., 2021, at 1, 4–7 (describing the steady rise of overdoses as an “opioid-epidemic” and the responses from the U.S. Congress).Show More A common refrain from both policymakers and law enforcement has been: “We cannot arrest our way out of this crisis.”19 19.See, e.g., Nabarun Dasgupta, We Can’t Arrest Our Way Out of Overdose: The Drug Bust Paradox, 113 Am. J. Pub. Health 708, 708 (2023) (explaining that “[i]n speaking with police about preventing overdose, the officers’ common refrain is ‘We aren’t going to arrest our way out of this’”); Press Release, Dick Durbin, Sen., U.S. Senate, Durbin, Duckworth Announce $1.2 Million for Kane County Diversion Program (Dec. 22, 2021), https://www.durbin.sen‌ate.gov/newsroom/press-releases/durbin-duckworth-announce-12-million-for-kane-county-d‌iversion-program [https://perma.cc/ULU7-2EG5] (stating “we can’t arrest our way out of” the overdose crisis); Andrea Cipriano, Rural Sheriffs: ‘We Can’t Arrest Our Way Out of the Opioid Crisis,’ Crime Rep. (Jan. 20, 2021), https://thecrimereport.org/2021/01/20/rural-sheri‌ffs-we-cant-arrest-our-way-out-of-the-opioid-crisis/ [https://perma.cc/NXV9-U5Y3].Show More This change in framing is due, at least in part, to the rampant whitewashing of prescription opioid misuse.20 20.See generally Julie Netherland & Helena B. Hansen, The War on Drugs That Wasn’t: Wasted Whiteness, “Dirty Doctors,” and Race in Media Coverage of Prescription Opioid Misuse, 40 Cult. Med. & Psych. 664 (2016) (maintaining that when people who use drugs are depicted as white, the policy proposals presented are more likely to be public-health-centered than punitive).Show More Moreover, given that Congress has enacted at least two significant pieces of legislation since 2016 to address the crisis that include provisions that are predominantly health-centric,21 21.See generally Comprehensive Addiction and Recovery Act of 2016, Pub. L. No. 114-198, 130 Stat. 695 (prescribing training for first responders, additional addiction treatment for veterans and families, expanding the education and prevention policies, and other methods to fight the opioid crisis); Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act, Pub. L. No. 115-271, 132 Stat. 3894 (2018) (expanding Medicaid and Medicare provisions “to address the opioid crisis”).Show More perhaps the dominant and most visible political response to the “opioid crisis” was a “[w]ar on [d]rugs [t]hat [w]asn’t.”22 22.Julie Netherland & Helena Hansen, White Opioids: Pharmaceutical Race and the War on Drugs That Wasn’t, 12 Biosocieties 217, 217 (2017).Show More

We nonetheless caution against any conclusion that the War on Drugs has ended. It has not. It has merely been retooled, recalibrated, and reframed by health-centric rhetoric. New policy proposals aimed at addressing the current overdose crisis may appear more public-health-oriented, and we concede that some are,23 23.For example, in 2021, for the first time in history, former Acting Director of the Office of National Drug Control Policy Regina LaBelle included harm reduction (a public health approach to addressing chaotic drug use defined by meeting people where they are and striving to reduce the health harms of drug use) as one of the executive branch’s strategic priorities to address overdose deaths. Press Release, Regina LaBelle, Acting Director, White House Office of Nat’l Drug Control Pol’y, Statement from Acting Director Regina LaBelle on Today’s CDC Overdose Death Data (Oct. 13, 2021), https://www.whitehouse.gov/ondcp/briefing-room/20‌21/10/13/statement-from-acting-director-regina-labelle-on-todays-cdc-overdose-death-data-4/ [https://perma.cc/83DB-URSX].Show More but an insidious re-entrenchment of the punitive approach to drug use walks in lockstep with those highly publicized public health measures.

Part I of this Article provides an overview of the key features of the Old Drug War with an emphasis on the racism endemic to its purposes. Part II enumerates the extravagant failures of the punitive, supply-side-centric Old Drug War, explaining why its tactics ensure an increasingly dangerous and deadly American drug supply. Part III of this Article deploys three categories of recent laws and policies to demonstrate that the United States persists in waging a punitive and predominantly supply-side War on Drugs cloaked in health-oriented rhetoric.

Part III proceeds in three Sections. Section III.A gives an overview of state laws that provide law enforcement with new data and evidence for criminal prosecution through enhanced controlled substance surveillance. While policymakers have couched such surveillance as an effort to improve health outcomes, it has motivated a marked decrease in the prescribing of opioid analgesics and, as a result, driven many patients in legitimate medical need of such prescription drugs to the illicit (and more dangerous) market. Increased surveillance has been accompanied by the highly publicized prosecution of prescribers, a chilling effect on providers, and the neglect and abandonment of patients in chronic and intractable pain. Such patients are frequently labeled as drug-seekers and deviants unworthy of treatment in the American health care system. We further detail how the algorithms purportedly used to quantify patient drug use risks are steeped with racial and gender prejudice and discriminate against individuals with disabilities.

Section III.B delineates and analyzes certain criminal and civil punishment enhancements of the New Drug War. It explains that several states have enacted new criminal laws that make it easier to charge persons with drug-induced homicide (“DIH”) for overdose deaths and posits that the aggressive enforcement of such laws may lead to an increase in drug-related fatalities and disparately impact individuals minoritized as Black. This Section also points to the federal government’s recent use of fentanyl-related product scheduling to enhance the criminal penalties for drug use and distribution. Section III.B concludes by elaborating on the significant civil collateral consequences experienced by individuals who use drugs due to punitive child welfare and drug testing laws and policies.

Section III.C explains how New Drug War policies continue to create obstacles to evidence-based treatment and harm reduction resources for individuals who use drugs. This Section explains that policymakers remain resistant to reducing the numerous and burdensome federal laws and policies that govern access to opioid use disorder (“OUD”) medications—the gold-standard treatment for OUD—and contends that those policies exacerbate the country’s escalating overdose crisis. This Section further details America’s ongoing battles against and opposition to the operation and funding of two specific evidenced-based harm reduction programs that have been proven effective in reducing overdose fatalities and the health and safety harms associated with drug use: syringe services programs and overdose prevention centers.

The three categories of “New” Drug War laws and policies that are showcased in Part III of this article—enhanced surveillance, enhanced criminalization and civil punishment, and ongoing obstacles to treatment and harm reduction—demonstrate that our “New” Drug War is simply an extension of its predecessor disguised by a public health promotional campaign. Simply stated, the popularity of a predominantly punitive, supply-side, law-enforcement-centric drug policy approach persists despite ample evidence that its core tactics are woefully ineffective. Before diving into a discussion about the very familiar characteristics of our “New” Drug War, we turn first to an overview of the old one, which is provided in the following Part.

  1.  andré douglas pond cummings & Steven A. Ramirez, Roadmap for Anti-Racism: First Unwind the War on Drugs Now, 96 Tul. L. Rev. 469, 469–70 (2022) (“The War on Drugs (WOD) transmogrified into a war on communities of color early in its history, and its impact has devastated communities of color first and foremost. People of color disproportionately suffer incarceration in the WOD even though people of color use illegal narcotics at substantially lower rates than white Americans.” (footnotes omitted)); Paul Butler, Chokehold: Policing Black Men 122 (2017) (noting “that ‘the war on drugs’ has been selectively waged against African Americans. . . . For drug crimes, African Americans are about 13 percent of people who do the crime, but about 60 percent of people who do the time.”). ↑
  2.  Juhohn Lee, America Has Spent Over a Trillion Dollars Fighting the War on Drugs. 50 Years Later, Drug Use in the U.S. Is Climbing Again, CNBC (June 17, 2021, 1:15 PM), https://www.cnbc.com/2021/06/17/the-us-has-spent-over-a-trillion-dollars-fighting-war-on-d‌rugs.html [https://perma.cc/9BAL-Y45A]. ↑
  3.  Nkechi Taifa, Race, Mass Incarceration, and the Disastrous War on Drugs, Brennan Ctr. for Just. (May 10, 2021), https://www.brennancenter.org/our-work/analysis-opinion/race-mas‌s-incarceration-and-disastrous-war-drugs [https://perma.cc/54XD-6FGH] (explaining how increasingly punitive drug “laws flooded the federal system with people convicted of low-level and nonviolent drug offenses”); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 6–11 (rev. ed. 2020) (detailing how the War on Drugs led to mass incarceration). ↑
  4.  Taleed El-Sabawi, Defining the Opioid Epidemic: Congress, Pressure Groups, and Problem Definition, 48 U. Mem. L. Rev. 1357, 1390–91 (2018) [hereinafter El-Sabawi, Defining the Opioid Epidemic]. ↑
  5.  Michael Tonry, Race and the War on Drugs, 1994 U. Chi. Legal F. 25, 25‒26 (1994) (defining the War on Drugs as an initiative reinforced by the Reagan and Bush Administrations to reduce drug trade and use by means of education and treatment components with much emphasis on law enforcement). ↑
  6.  Taleed El-Sabawi & Jennifer Oliva, The Influence of White Exceptionalism on Drug War Discourse, 94 Temp. L. Rev. 649, 649 (2022); see David T. Courtwright, A Century of American Narcotic Policy, in 2 Treating Drug Problems 1, 42 (Dean R. Gerstein & Henrick J. Harwood eds., 1992) (“The sense that illicit drug trafficking and use were out of control led to the present war on drugs.”); Mona Lynch, Theorizing the Role of the ‘War on Drugs’ in US Punishment, 16 Theoretical Criminology 175, 178–79 (2012) (describing specific legislation that criminally punishes both possession and sale of drugs based on “their combined medical value, harmfulness to health, and addictive properties”). ↑
  7.  Nat’l Rsch. Council, Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us 139 (Charles F. Manski, John V. Pepper & Carol V. Petrie eds., 2001). ↑
  8.  See, e.g., Ojmarrh Mitchell, Ineffectiveness, Financial Waste, and Unfairness: The Legacy of the War on Drugs, 32 J. Crime & Just. 1, 7–10 (2009); Evan Wood et al., Impact of Supply-Side Policies for Control of Illicit Drugs in the Face of the AIDS and Overdose Epidemics: Investigation of a Massive Heroin Seizure, 168 Canadian Med. Ass’n J. 165, 168 (2003). ↑
  9.  Leo Beletsky & Corey S. Davis, Today’s Fentanyl Crisis: Prohibition’s Iron Law, Revisited, 46 Int’l J. Drug Pol’y 156, 156–58 (2017); see also Johanna Catherine Maclean, Justine Mallatt, Christopher J. Ruhm & Kosali Simon, Economic Studies on the Opioid Crisis: A Review 1, 15, 19 (Nat’l Bureau of Econ. Rsch., Working Paper No. 28067, 2021), https://w‌ww.nber.org/system/files/working_papers/w28067/w28067.pdf [https://perma.cc/FRN9-D7‌WB] (explaining that opioid “overdose deaths rose 9.1 percent from March 2019 to March 2020” despite “policy efforts to address the crisis,” certain prescription drug monitoring programs “lead[] to increased heroin-related crime,” and that other programs addressing OxyContin misuse “spurred development of illicit drug markets”); Meghan Peterson et al., “One Guy Goes to Jail, Two People Are Ready to Take His Spot”: Perspectives on Drug-Induced Homicide Laws Among Incarcerated Individuals, 70 Int’l J. Drug Pol’y 47, 52 (2019) (concluding that drug policies were “not . . . effective in mitigating overdose risk and could induce harm” instead). ↑
  10.  Christopher J. Coyne & Abigail R. Hall, Four Decades and Counting: The Continued Failure of the War on Drugs, 811 Cato Inst. Pol’y Analysis, Apr. 2017, at 1, 19, https://www.ca‌to.org/sites/cato.org/files/pubs/pdf/pa-811-updated.pdf [https://perma.cc/LA3Z-VSUU]. ↑
  11.  Jeffery Miron, The Budgetary Effects of Ending Drug Prohibition, 83 Cato Inst. Tax & Budget Bull., July 23, 2018, https://www.cato.org/tax-budget-bulletin/budgetary-effects-endi‌ng-drug-prohibition [https://perma.cc/WN7F-PRPQ]. ↑
  12.  Merianne R. Spencer, Matthew F. Garnett & Arialdi M. Miniño, Drug Overdose Deaths in the United States, 2002–2022, 491 Nat’l Ctr. Health Stats. Data Brief 1, 1 (Mar. 2024), https://www.cdc.gov/nchs/data/databriefs/db491.pdf [https://perma.cc/5Q7J-4BBR]; Deidre McPhillips, US Drug Overdose Deaths, Fueled by Synthetic Opioids, Hit a New High in 2022, CNN (May 18, 2023, 11:27 AM), https://www.cnn.com/2023/05/18/health/drug-overdose-de‌aths-2022 [https://perma.cc/34SG-S3S7]. ↑
  13.  Sessi Kuwabara Blanchard, The Beginner’s Guide to Harm Reduction, Healthline (Aug. 30, 2021), https://www.healthline.com/health/substance-use/harm-reduction [https://perma.‌cc/KEH6-LRH8] (explaining that substance use is experienced on a spectrum that varies from managed to chaotic use and defining chaotic use as “consumption [that] is no longer bound by self-regulation” where “the negative effects on [an individual’s] life outweigh the original benefits . . . from consuming drugs”). ↑
  14.  See, e.g., John Hudak, Biden Should End America’s Longest War: The War on Drugs, Brookings Inst. (Sept. 24, 2021), https://www.brookings.edu/articles/biden-should-end-ame‌ricas-longest-war-the-war-on-drugs/ [https://perma.cc/GCK7-JEAW] (“Despite its dramatic policy failures, the War on Drugs has been wildly successful in one specific area: institutionalizing racism. The drug war was built on a foundation of racism and xenophobia.”). ↑
  15.  Dan Baum, Legalize It All: How to Win the War on Drugs, Harper’s Mag. (Apr. 2016), https://harpers.org/archive/2016/04/legalize-it-all/ [https://perma.cc/W73S-PTNX]. Moreover, the harshness of the criminal penalties associated with a drug’s possession have been driven not by the “dangerousness” of the drug so much as the racial characteristics associated with the people who use that substance. Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality: Or Why the “War on Drugs” Was a “War on Blacks,” 6 J. Gender, Race & Just. 381, 396–98 (2002) (explaining that the dramatic federal sentencing disparity between crack and powder cocaine was unjustified from a physiological perspective because each is simply a different form of the same drug and that, instead, the dramatically more harsh criminal penalties that attended to crack cocaine were based on its use association with Black people (and, concomitantly, that the relatively less harsh criminal penalties that attended to powder cocaine were based on its use association with white people)); Brittany Arsiniega, Teresa Cosby, Spencer Richardson & Kylie Berube, Race and Prohibition Movements, 11 Tenn. J. Race, Gender & Soc. Just. 16, 19 (2021) (“Those drugs associated with minorities have been viewed by governmental majorities (and the public at large) as more harmful or dangerous than those consumed by white people and criminalized accordingly. Examples include crack cocaine versus powder cocaine and consumption of opium by smoking (associated with Chinese immigrants) versus oral consumption (associated with white people).” (footnotes omitted)). ↑
  16.  See, e.g., Helena Hansen, Jules Netherland & David Herzberg, Whiteout: How Racial Capitalism Changed the Color of Opioids in America 36, 59 (2023) [hereinafter Hansen et al., Whiteout] (explaining that “[i]nherent in the effort of . . . policy makers . . . to distinguish licit from illicit drugs is an unspoken racial symbolism of white biology and Black crime” and “[f]or the last fifty years, . . . policy makers have invested heavily in the association between Black and Brown communities and illicit drug use and have used the threat of drugs to ramp up fears about Black and Brown people and to craft increasingly punitive policies that have been effective tools of racial targeting and control”). ↑
  17.  Brian Mann, After 50 Years of the War on Drugs, ‘What Good Is It Doing for Us?’, NPR (June 17, 2021, 5:00 AM), https://www.npr.org/2021/06/17/1006495476/after-50-years-of-th‌e-war-on-drugs-what-good-is-it-doing-for-us [https://perma.cc/79UT-CQ2A] (contending that, in response to the current overdose crisis, “some of the most severe policies implemented during the drug war are being scaled back or scrapped altogether” “[i]n many parts of the U.S.,” while admitting that “much of the drug war’s architecture remains intact”). ↑
  18.  Taleed El-Sabawi, The Role of Pressure Groups and Problem Definition in Crafting Legislative Solutions to the Opioid Crisis, 11 Ne. U. L. Rev. 372, 380, 395 (2019) (finding that a health-oriented approach was used by pressure groups during congressional hearings on the opioid crisis from 2014–2016); see also Max Weiss & Michael Zoorob, Political Frames of Public Health Crises: Discussing the Opioid Epidemic in the US Congress, 281 Soc. Sci. & Med., 2021, at 1, 4–7 (describing the steady rise of overdoses as an “opioid-epidemic” and the responses from the U.S. Congress). ↑
  19.  See, e.g., Nabarun Dasgupta, We Can’t Arrest Our Way Out of Overdose: The Drug Bust Paradox, 113 Am. J. Pub. Health 708, 708 (2023) (explaining that “[i]n speaking with police about preventing overdose, the officers’ common refrain is ‘We aren’t going to arrest our way out of this’”); Press Release, Dick Durbin, Sen., U.S. Senate, Durbin, Duckworth Announce $1.2 Million for Kane County Diversion Program (Dec. 22, 2021), https://www.durbin.sen‌ate.gov/newsroom/press-releases/durbin-duckworth-announce-12-million-for-kane-county-d‌iversion-program [https://perma.cc/ULU7-2EG5] (stating “we can’t arrest our way out of” the overdose crisis); Andrea Cipriano, Rural Sheriffs: ‘We Can’t Arrest Our Way Out of the Opioid Crisis,’ Crime Rep. (Jan. 20, 2021), https://thecrimereport.org/2021/01/20/rural-sheri‌ffs-we-cant-arrest-our-way-out-of-the-opioid-crisis/ [https://perma.cc/NXV9-U5Y3]. ↑
  20.  See generally Julie Netherland & Helena B. Hansen, The War on Drugs That Wasn’t: Wasted Whiteness, “Dirty Doctors,” and Race in Media Coverage of Prescription Opioid Misuse, 40 Cult. Med. & Psych. 664 (2016) (maintaining that when people who use drugs are depicted as white, the policy proposals presented are more likely to be public-health-centered than punitive). ↑
  21.  See generally Comprehensive Addiction and Recovery Act of 2016, Pub. L. No. 114-198, 130 Stat. 695 (prescribing training for first responders, additional addiction treatment for veterans and families, expanding the education and prevention policies, and other methods to fight the opioid crisis); Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act, Pub. L. No. 115-271, 132 Stat. 3894 (2018) (expanding Medicaid and Medicare provisions “to address the opioid crisis”). ↑
  22.  Julie Netherland & Helena Hansen, White Opioids: Pharmaceutical Race and the War on Drugs That Wasn’t, 12 Biosocieties 217, 217 (2017). ↑

  23.  For example, in 2021, for the first time in history, former Acting Director of the Office of National Drug Control Policy Regina LaBelle included harm reduction (a public health approach to addressing chaotic drug use defined by meeting people where they are and striving to reduce the health harms of drug use) as one of the executive branch’s strategic priorities to address overdose deaths. Press Release, Regina LaBelle, Acting Director, White House Office of Nat’l Drug Control Pol’y, Statement from Acting Director Regina LaBelle on Today’s CDC Overdose Death Data (Oct. 13, 2021), https://www.whitehouse.gov/ondcp/briefing-room/20‌21/10/13/statement-from-acting-director-regina-labelle-on-todays-cdc-overdose-death-data-4/ [https://perma.cc/83DB-URSX]. ↑

A Case of Mistaken Authority: Reconciling Illinois v. Rodriguez, Originalism, and the Common Law

In the last few decades, the Supreme Court has largely turned to a history-based, originalist approach to the Fourth Amendment. Many scholars have been quick to laud the change, criticize the methodology, or argue their views of the historical record. But few have taken the time to catalogue what historical sources and evidence the Supreme Court has found persuasive in its originalist cases. This Note does so. It takes the Court’s originalist methodology as a given and recognizes that historical analysis has become a key part of the Court’s Fourth Amendment jurisprudence. So, this Note analyzes various originalist opinions of the Court to compile a set of tools that litigants should be using when arguing Fourth Amendment issues.

This Note then undertakes to apply these tools in an area where the Court has not. In Illinois v. Rodriguez, the Court established its doctrine of apparent-authority consent. But the case was decided under a non-originalist framework. Using the Court’s preferred historical sources, this Note argues that Rodriguez’s approach to apparent-authority consent was unknown to the common law of trespass, searches, and seizures. And if apparent authority would not have excused a trespass at common law, it should not excuse a government search now. Thus, doctrine and methodology conflict regarding apparent-authority consent. In response, this Note advances a few possible ways to harmonize that inconsistency.

Introduction

In its recent Fourth Amendment cases, the Supreme Court has increasingly turned toward a theory of Fourth Amendment originalism to determine the meaning of the constitutional protection against unreasonable searches and seizures.1 1.David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1743 (2000).Show More Championed by Justice Antonin Scalia,2 2.Id.Show More Fourth Amendment originalism is based upon one fundamental principle: “The Amendment ‘must provide at a minimum the degree of protection it afforded when it was adopted.’”3 3.Lange v. California, 141 S. Ct. 2011, 2022 (2021) (quoting United States v. Jones, 565 U.S. 400, 411 (2012)).Show More

To figure out what that minimum degree of protection is, the Court has frequently undertaken historical surveys of the Founding-era common law of trespass, searches, and seizures.4 4.See, e.g., id. at 2022–24; Wilson v. Arkansas, 514 U.S. 927, 931–36 (1995); Atwater v. City of Lago Vista, 532 U.S. 318, 326–45 (2001).Show More Of course, the Court has recognized that common law rules are not always clear.5 5.Lange, 141 S. Ct. at 2022.Show More However, in the cases where the Court has found that the common law definitively declared that a certain type of search or seizure was or was not reasonable, that determination has been all but dispositive.6 6.See Atwater, 532 U.S. at 345 n.14.Show More In those cases, litigants can win game, set, and match by convincing the Court of their understanding of the historical legal record.

While Fourth Amendment originalism had a distinguished pedigree in the Court’s early search and seizure jurisprudence, it was largely discounted during the Warren and Burger Courts.7 7.Sklansky, supra note 1, at 1740–41.Show More As such, many cases decided during the mid- to late-twentieth century were litigated on a jurisprudential rubric that differs substantially from much of the Court’s current approach to deciding Fourth Amendment questions.

This leads to a few natural questions. What tools should litigants use to argue Fourth Amendment search and seizure cases under the now-ascendant originalist framework? And how do many of the Court’s older precedents stack up in light of this revived history-based approach? Does the Founding-era common law support those decisions? Further, how should people react when it seems that current cases do not ensure that the Fourth Amendment provides “the degree of protection it afforded when it was adopted”?8 8.Lange, 141 S. Ct. at 2022 (quoting Jones, 565 U.S. at 411).Show More

This Note undertakes to answer these questions. While much recent originalist scholarship is quick to provide historical evidence it argues the Court should find persuasive, this Note inverts the analysis, first cataloguing the various types of sources the Court has regularly used to determine the content of the common law and then presenting them to litigants as primary tools to be used in making history-based legal arguments. Then, as a case study, this Note takes those tools and applies them to Illinois v. Rodriguez,9 9.497 U.S. 177 (1990).Show More a case decided just before the Court began to shift its focus toward a history-based approach. In Rodriguez, which established the Court’s current doctrine regarding apparent-authority-consent searches, the Court held that police may constitutionally search a person’s home pursuant to consent obtained from someone who the officers reasonably, but mistakenly, believed had the requisite authority to consent.10 10.Id. at 188–89.Show More However, using a mixture of well-known and rarely or never-before cited historical evidence, including early American and British case law, this Note argues that Rodriguez’s holding does not fit comfortably within the Founding-era common law of searches and seizures. But it proposes a few ways to reach a sort of harmony.

Thus, this Note proceeds in five Parts. Part I introduces the doctrine of consent and apparent authority. Part II examines how the Court has increasingly looked to history and the common law to determine whether a search is reasonable or not under the Fourth Amendment. Part III catalogues the common tools and methods that the Court has used to determine what the content of the Founding-era common law of searches and seizures actually was. Part IV uses those tools to argue that apparent authority would not have excused an officer’s trespass onto someone’s land, making that trespass an unreasonable search at common law. Finally, Part V discusses the possible implications that this research may have for apparent-authority-consent-search doctrine.

  1.  David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1743 (2000). ↑
  2.  Id. ↑
  3.  Lange v. California, 141 S. Ct. 2011, 2022 (2021) (quoting United States v. Jones, 565 U.S. 400, 411 (2012)). ↑
  4.  See, e.g., id. at 2022–24; Wilson v. Arkansas, 514 U.S. 927, 931–36 (1995); Atwater v. City of Lago Vista, 532 U.S. 318, 326–45 (2001). ↑
  5.  Lange, 141 S. Ct. at 2022. ↑
  6.  See Atwater, 532 U.S. at 345 n.14. ↑
  7.  Sklansky, supra note 1, at 1740–41. ↑
  8.  Lange, 141 S. Ct. at 2022 (quoting Jones, 565 U.S. at 411). ↑
  9.  497 U.S. 177 (1990). ↑

  10.  Id. at 188–89. ↑

Internet Technology Companies as Evidence Intermediaries

Search warrants, subpoenas, and other forms of compulsory legal process are essential for legal parties to gather evidence. Internet technology companies increasingly control wide-ranging forms of evidence, yet little is known about how these companies fulfill their compulsory legal obligations. This Article presents an original study of internet technology companies as evidence intermediaries: third-party organizations that control access to evidence routinely sought by legal parties. Drawing on in-depth qualitative interviews with companies’ legal and compliance staff and with law enforcement agents, I show how company processes for responding to search warrants cannot be neatly categorized within the existing literature’s dichotomy of cooperation or resistance. Rather, the responses consist of makeshift measures that companies have developed to manage predicaments arising from the imprecise or impracticable wording of warrants. These measures can affect the evidence that is ultimately available for use in legal proceedings. They can also untether the scope of searches—as they are carried out—from the procedures of the Fourth Amendment. This Article contends that, because judicial officers are likely ill-equipped to oversee problematic company practices, a variety of institutional interventions to supplement existing court oversight of search procedure should be considered.

Introduction

Legal actors depend on forms of compulsory legal process to gather evidence, including information from internet technology companies such as Google, Meta, X (formerly Twitter), and Apple. In 2022, Google and Meta alone received over 230,000 search warrants, subpoenas, and other U.S. compulsory demands.1 1.See Government Requests for User Data, Meta, https://transparency.fb.com/data/governm‌ent-data-requests/ [https://perma.cc/SWT6-NA5R] (last visited Apr. 10, 2024) (data showing 125,877 legal process requests received by Meta in the United States in 2022); Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/over‌view [https://perma.cc/QAA7-PLVH] (last visited Apr. 10, 2024) (data showing 107,306 legal process requests received by Google in the United States in 2022).Show More These are nearly all third-party process demands, meaning that the recipient companies are not parties to the underlying disputes. Rather, the companies receive many such demands because their business operations generate evidence relevant to nearly every form of conduct that might give rise to an investigation or legal dispute. For example, congressional committees have subpoenaed companies to obtain social media data related to Russian interference in the 2016 elections.2 2.Aaron R. Cooper, Congressional Surveillance, 70 Am. U. L. Rev 1799, 1801 (2021).Show More Regulatory agencies submit subpoenas and civil investigative demands to internet technology companies for information about subscribers who have engaged in fraud or been victims of deceit.3 3.E.g., Christopher Slobogin, Privacy at Risk: The New Government Surveillance and the Fourth Amendment 140–41 (2007); Rory Van Loo, The Missing Regulatory State: Monitoring Businesses in an Age of Surveillance, 72 Vand. L. Rev. 1563, 1590, 1627 (2019); Andrew Keane Woods, Against Data Exceptionalism, 68 Stan. L. Rev. 729, 776–77 (2016).Show More Litigants in both civil and criminal cases have sought photographs, social media postings, and other forms of data to gather information about witnesses.4 4.See, e.g., Rebecca Wexler, Privacy as Privilege: The Stored Communications Act and Internet Evidence, 134 Harv. L. Rev. 2721, 2738–39 (2021); Joshua A.T. Fairfield & Erik Luna, Digital Innocence, 99 Cornell L. Rev. 981, 1076 (2013); Jane Bambauer, Other People’s Papers, 94 Tex. L. Rev. 205, 239 (2015); Marc J. Zwillinger & Christian S. Genetski, Criminal Discovery of Internet Communications under the Stored Communications Act: It’s Not a Level Playing Field, 97 J. Crim. L. & Criminology 569, 571 (2007); Steven S. Gensler, Special Rules for Social Media Discovery?, 65 Ark. L. Rev. 7, 9 n.7, 12–13 n.18 (2012).Show More And perhaps most frequently, law enforcement agents seek evidence from internet technology companies regarding suspects’ and victims’ identities, communications, and conduct.5 5.See, e.g., Slobogin, supranote 3, at 141; Alan Z. Rozenshtein, Surveillance Intermediaries, 70 Stan. L. Rev. 99, 147‒48 (2018); Anne E. Boustead, Police, Process, and Privacy: Three Essays on the Third Party Doctrine 40 (Aug. 2016) (Ph.D. dissertation, Pardee RAND Graduate School) (on file with RAND Corp.); Am. Bar Ass’n, ABA Standards for Criminal Justice: Law Enforcement Access to Third Party Records 2–3 (3d ed. 2013).Show More

Despite the volume and importance of third-party legal process directed at internet technology companies, little is known about how these companies actually undertake the work of processing such demands. To be sure, scholars are aware of the importance of these actors as “evidence intermediaries,” which I define as third-party organizations that control access to evidence routinely sought by legal parties. Scholars have paid particular attention to these companies’ role in generating and controlling access to information about people, places, and events.6 6.Jennifer Daskal, The Un-Territoriality of Data, 125 Yale L.J. 326, 328 (2015) [hereinafter Daskal, Un-Territoriality]; Woods, supra note 3, at 731; Paul M. Schwartz, Legal Access to the Global Cloud, 118 Colum. L. Rev. 1681, 1700 (2018); Ian Samuel, The New Writs of Assistance, 86 Fordham L. Rev. 2873, 2884 (2018); Aziz Z. Huq & Rebecca Wexler, Digital Privacy for Reproductive Choice in the Post-Roe Era, 98 N.Y.U. L. Rev. 555, 560 (2023); Anne E. Boustead, Hoover Inst., Aegis Series Paper No. 1802, Small Towns, Big Companies: How Surveillance Intermediaries Affect Small and Midsize Law Enforcement Agencies 24 (2018). For implications for defendants, overseas governments, and international bodies seeking evidence, see Wexler, supra note 4, at 2738–39; Alexa Koenig, Keith Hiatt & Khaled Alrabe, Access Denied: The International Criminal Court, Transnational Discovery, and the American Servicemembers Protection Act, 36 Berkeley J. Int’l L. 1, 25 (2018); Kate Westmoreland & Gail Kent, International Law Enforcement Access to User Data: A Survival Guide and Call for Action, 13 Canadian J.L. & Tech. 225, 227 (2015).Show More For example, a growing body of literature examines the information-centralizing effect of the largest companies—which have vast numbers of users and extensive data from and about those users7 7.E.g., Jon D. Michaels, All the President’s Spies: Private-Public Intelligence Partnerships in the War on Terror, 96 Calif. L. Rev. 901, 908 (2008) [hereinafter Michaels, All the President’s Spies]; Jon D. Michaels, Deputizing Homeland Security, 88 Tex. L. Rev. 1435, 1435–36 (2010) [hereinafter Michaels, Deputizing Homeland Security]; Niva Elkin-Koren & Eldar Haber, Governance by Proxy: Cyber Challenges to Civil Liberties, 82 Brook. L. Rev. 105, 112–13 (2016).Show More—as well as those companies’ capacity to constrain evidence access.8 8.E.g., Rozenshtein, supra note 5, at 105; Kristen E. Eichensehr, Digital Switzerlands, 167 U. Pa. L. Rev. 665, 712–13 (2019); see also Avidan Y. Cover, Corporate Avatars and the Erosion of the Populist Fourth Amendment, 100 Iowa L. Rev. 1441, 1445 (2014) (arguing that service providers cannot serve a government-checking function because they have vested interests in cooperating with the government); Developments in the Law—More Data, More Problems, 131 Harv. L. Rev. 1715, 1722–23 (2018) [hereinafter Developments—More Data] (explaining how technology companies exercise large amounts of discretion in handling law enforcement requests for information, including by minimizing capacity to respond and slowing down response times).Show More However, with few exceptions,9 9.See Orin S. Kerr, The Fourth Amendment Limits of Internet Content Preservation, 65 St. Louis U. L.J. 753, 755 (2021); Christopher Soghoian, The Spies We Trust: Third Party Service Providers and Law Enforcement Surveillance 2 (July 15, 2012) (Ph.D. dissertation, Indiana University) (ProQuest); William A. Carter & Jennifer C. Daskal, Ctr. for Strategic & Int’l Stud., Low-Hanging Fruit: Evidence-Based Solutions to the Digital Evidence Challenge 18–19 (2018); Sean E. Goodison, Robert C. Davis & Brian A. Jackson, RAND Corp., Digital Evidence and the U.S. Criminal Justice System: Identifying Technology and Other Needs to More Effectively Acquire and Utilize Digital Evidence 10 (2015); Michael Vermeer, Dulani Woods & Brian Jackson, RAND Corp., Identifying Law Enforcement Needs for Access to Digital Evidence in Remote Data Centers 2 (2018).Show More scholars have paid little attention to the core work of the evidence mediating that internet technology companies now undertake: how company staff review demands for evidence, determine what material is responsive, and segregate and produce that material to the demanding party.

This omission is problematic. Current academic accounts focus on companies’ highly visible efforts to resist or cooperate with government officials’ compulsory demands, such as through litigation against court orders or efforts to encrypt communication services.10 10.Rozenshtein, supra note 5, at 104‒05, 115‒22; Eichensehr, supra note 8, at 667‒68, 677‒79; Cover, supra note 8, at 1469‒74, 1479, 1481‒84; Developments—More Data, supra note 8, at 1722–23; Michaels, All the President’s Spies, supra note 7, at 908; Michaels, Deputizing Homeland Security, supra note 7, at 1435–36; Elkin-Koren & Haber, supra note 7, at 112–13.Show More Moreover, consistent with a focus on companies’ publicized activities, existing accounts assume that companies’ everyday practices in responding to routine law enforcement evidence demands also reflect a deliberately chosen orientation toward either cooperation or resistance.11 11.E.g., Rozenshtein, supra note 5, at 105 (describing a contentious relationship between internet technology companies and law enforcement as the “new normal”). For a critique, see Developments—More Data, supranote 8, at 1724–29.Show More The focus of existing literature on companies’ efforts to obstruct or assist law enforcement overlooks an antecedent problem that companies must navigate: understanding what law enforcement is actually asking of the company.

Internet technology companies represent only half of third-party compulsory legal process. On the other side of this process, law enforcement officers must compose a formal set of directives that would putatively require a company to produce evidence. How agents compose these evidence demands affects how company staff identify and produce that evidence. How those companies actually respond to such directives, in turn, shapes how evidence seekers compose future demands. The highly interrelated character of compulsory legal process suggests that an understanding of companies’ roles as evidence intermediaries must account for the two-sided nature of the legal process task, both as a matter of practice and as a matter of theory.

This Article addresses both these empirical and theoretical requirements. It presents findings from an in-depth interview study that affords substantial insight into internet technology companies’ roles as evidence intermediaries for data sought through search warrants. The study involved forty-seven semi-structured interviews with two groups of hard-to-access subjects: company legal and compliance staff responsible for reviewing search warrants and law enforcement investigators and prosecutors responsible for preparing them.

Based on an analysis of these data, I show that in the routine, everyday processing of search warrants, company staff are oriented chiefly toward expedience in processing warrants and only secondarily toward assisting or resisting government efforts to acquire evidence. Indeed, my data indicate that investigators and prosecutors often do not prepare search warrants in ways that present the responding company with a choice among actions readily distinguishable as efforts to either facilitate or frustrate agents’ access to evidence.

Theoretically, this Article develops the concept of “knowledge misalignment” to explain these findings. Knowledge misalignment arises when the distribution of necessary knowledge among individuals and organizations undertaking a joint task is misaligned with regard to the parts of the task for which each party is responsible. In the context of search warrants for internet evidence, law enforcement agents are well acquainted with the facts of an underlying case, but they often lack the knowledge of the company’s operations necessary to compose warrant language that precisely identifies the desired data. This disconnect arises because internet technology companies can easily modify their product and service offerings and thus can collect and store a wide variety of changing data types. As a result, law enforcement agents preparing search warrants often describe desired evidence in terms that reflect incorrect, informal, or outdated understandings of the company’s data holdings. The task of interpreting and narrowing imprecise and impractically broad directives then falls to the company staff executing the demand, who may know well what kinds of data their company has but know little about the needs of the underlying investigation beyond what can be inferred from the language of the search warrant.

To manage the task of interpreting and narrowing imprecise and impractically broad warrant directives, company staff use a set of interpretive and technological coping practices. These practices sometimes result in staff producing additional evidence not called for by the warrant, or failing to produce evidence called for by the warrant. Because these coping practices can displace the terms of search warrants as the measure by which company staff determine the scope of the searches carried out, these practices influence what kinds of evidence, and how much of it, is ultimately available for use in legal proceedings.

Drawing on these insights, this Article also identifies two important implications for legal institutions. First, it identifies a worrisome potential consequence of the practices that companies use to manage knowledge misalignment: these practices can untether the scope of searches, as they are carried out, from the procedures of the Fourth Amendment. Analysis of interview data reveals that when company staff interpret what data are sought in a warrant with a view toward making the production of responsive data a manageable task, they tend to reframe the boundaries of the production in ways that foreground quantitative organizational criteria within their knowledge (e.g., dates, numbers of accounts, data size), rather than the circumstances of the investigation as reflected in the judicially approved language of the warrant. Over time, the production of evidence in response to search warrants may be shaped more by evidence intermediaries’ application of these quantitative organizational criteria than an analysis of probable cause that is consistent with the Fourth Amendment.

Second, this Article raises substantial questions about the capacity of our current adversarial system—dependent on judicial oversight of search warrants—to address the knowledge misalignment that underlies potentially problematic company practices. Given that judicial officers are no better informed about the operations of internet technology companies than law enforcement agents, it is difficult to see how resource-constrained judicial officers could acquire an understanding of the data holdings, technical architecture, and production practices of widely ranging businesses that would be necessary to effectively oversee the search warrant response process. All of this points to the necessity of institutional intervention to supplement judicial oversight in individual cases.

This Article proceeds in four Parts. Part I defines the concept of evidence intermediaries and shows how internet technology companies are similar to and different from older evidence intermediaries such as banks, hospitals, and telecommunications companies. Internet technology companies are similar in that they, like other evidence intermediaries, provide centralized access points to evidence. However, these companies are also distinguishable because they collect broader swaths of data types that change more frequently, they are more opaque to outsiders seeking evidence, and they receive evidentiary demands across a greater variety of cases.

In Part II, I present the design of the interview study that I conducted to examine how internet technology companies process third-party search warrants from law enforcement agencies. Section II.A explains why in-depth interviews with two sets of actors—legal and compliance staff for internet technology companies and law enforcement investigators and prosecutors—are necessary to understand how third-party search procedure for internet evidence works in practice. Sections II.B and II.C summarize the procedures that I used to sample, recruit, and interview respondents and to increase the reliability of the interview data, given that both sets of respondents were reluctant to speak about a sensitive topic that has been the subject of substantial public scrutiny. Section II.D reports what both company and law enforcement respondents emphasized during the interviews: while companies often provide useable evidence in response to search warrants, they encounter uncertainties in understanding what a search warrant is seeking. In response to these uncertainties, companies may end up producing evidence not called for by a warrant and withholding evidence that is called for by a warrant.

In Part III, I develop the concept of knowledge misalignment as a diagnosis of a core informational problem in third-party compulsory legal process. Drawing on organizational theory and interview data, I argue that two types of knowledge misalignment complicate company responses to search warrants. Linguistic misalignment occurs when search warrants describe the sought-after data in terms that do not align with the data that the company holds or the internal company language used to describe those data. Substantive misalignment occurs when company staff must reframe search warrant directives into tasks tractable within the constraints of the company’s dedicated resources, without knowledge of the circumstances of the investigation or the legal elements that must ultimately be proven in court. I then explain the four types of practices that companies may use to manage knowledge misalignment: acquisition of information about underlying investigations, reconstruction of the language of compulsory demands, standardization of company staff interpretations of recurring search warrant language, and insulation of company knowledge. While these practices allow companies to manage knowledge misalignment, they also change the nature and quantity of evidence ultimately available to legal parties.

In Part IV, I turn to the institutional implications of these insights. I first explain how the company practices described in my data tend to untether the scope of searches—as they are carried out—from the procedures of the Fourth Amendment. Due to knowledge misalignment, companies usually do not know the facts about the underlying case that gave rise to a given process demand. Thus, when company staff interpret what data are sought in a warrant with a view toward making the production of responsive data a manageable task, they tend to reframe the boundaries of the production in ways that favor handing over routinely produced types of data, often within quantitative limits set by internal company standards. The scope of the search carried out is thus determined not by case-specific assessment of probable cause as determined by a judge and conveyed in the language of the search warrant but rather by makeshift efforts on the part of company staff to apply quantitative organizational limits to search production.

I then argue that judicial officers are likely ill-equipped to oversee the kinds of company practices revealed by the interview data. Similarly to law enforcement agents, judicial officers currently lack the knowledge of internet company data holdings and data production practices that would be necessary to detect and redress the displacement of search warrant directives with companies’ standardized internal protocols. Accordingly, I argue for consideration of multiple institutional interventions to supplement judicial oversight.

  1.  See Government Requests for User Data, Meta, https://transparency.fb.com/data/governm‌ent-data-requests/ [https://perma.cc/SWT6-NA5R] (last visited Apr. 10, 2024) (data showing 125,877 legal process requests received by Meta in the United States in 2022); Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/over‌view [https://perma.cc/QAA7-PLVH] (last visited Apr. 10, 2024) (data showing 107,306 legal process requests received by Google in the United States in 2022). ↑
  2.  Aaron R. Cooper, Congressional Surveillance, 70 Am. U. L. Rev 1799, 1801 (2021). ↑
  3.  E.g., Christopher Slobogin, Privacy at Risk: The New Government Surveillance and the Fourth Amendment 140–41 (2007); Rory Van Loo, The Missing Regulatory State: Monitoring Businesses in an Age of Surveillance, 72 Vand. L. Rev. 1563, 1590, 1627 (2019); Andrew Keane Woods, Against Data Exceptionalism, 68 Stan. L. Rev. 729, 776–77 (2016). ↑
  4.  See, e.g., Rebecca Wexler, Privacy as Privilege: The Stored Communications Act and Internet Evidence, 134 Harv. L. Rev. 2721, 2738–39 (2021); Joshua A.T. Fairfield & Erik Luna, Digital Innocence, 99 Cornell L. Rev. 981, 1076 (2013); Jane Bambauer, Other People’s Papers, 94 Tex. L. Rev. 205, 239 (2015); Marc J. Zwillinger & Christian S. Genetski, Criminal Discovery of Internet Communications under the Stored Communications Act: It’s Not a Level Playing Field, 97 J. Crim. L. & Criminology 569, 571 (2007); Steven S. Gensler, Special Rules for Social Media Discovery?, 65 Ark. L. Rev. 7, 9 n.7, 12–13 n.18 (2012). ↑
  5.  See, e.g., Slobogin, supra note 3, at 141; Alan Z. Rozenshtein, Surveillance Intermediaries, 70 Stan. L. Rev. 99, 147‒48 (2018); Anne E. Boustead, Police, Process, and Privacy: Three Essays on the Third Party Doctrine 40 (Aug. 2016) (Ph.D. dissertation, Pardee RAND Graduate School) (on file with RAND Corp.); Am. Bar Ass’n, ABA Standards for Criminal Justice: Law Enforcement Access to Third Party Records 2–3 (3d ed. 2013). ↑
  6.  Jennifer Daskal, The Un-Territoriality of Data, 125 Yale L.J. 326, 328 (2015) [hereinafter Daskal, Un-Territoriality]; Woods, supra note 3, at 731; Paul M. Schwartz, Legal Access to the Global Cloud, 118 Colum. L. Rev. 1681, 1700 (2018); Ian Samuel, The New Writs of Assistance, 86 Fordham L. Rev. 2873, 2884 (2018); Aziz Z. Huq & Rebecca Wexler, Digital Privacy for Reproductive Choice in the Post-Roe Era, 98 N.Y.U. L. Rev. 555, 560 (2023); Anne E. Boustead, Hoover Inst., Aegis Series Paper No. 1802, Small Towns, Big Companies: How Surveillance Intermediaries Affect Small and Midsize Law Enforcement Agencies 24 (2018). For implications for defendants, overseas governments, and international bodies seeking evidence, see Wexler, supra note 4, at 2738–39; Alexa Koenig, Keith Hiatt & Khaled Alrabe, Access Denied: The International Criminal Court, Transnational Discovery, and the American Servicemembers Protection Act, 36 Berkeley J. Int’l L. 1, 25 (2018); Kate Westmoreland & Gail Kent, International Law Enforcement Access to User Data: A Survival Guide and Call for Action, 13 Canadian J.L. & Tech. 225, 227 (2015). ↑
  7.  E.g., Jon D. Michaels, All the President’s Spies: Private-Public Intelligence Partnerships in the War on Terror, 96 Calif. L. Rev. 901, 908 (2008) [hereinafter Michaels, All the President’s Spies]; Jon D. Michaels, Deputizing Homeland Security, 88 Tex. L. Rev. 1435, 1435–36 (2010) [hereinafter Michaels, Deputizing Homeland Security]; Niva Elkin-Koren & Eldar Haber, Governance by Proxy: Cyber Challenges to Civil Liberties, 82 Brook. L. Rev. 105, 112–13 (2016). ↑
  8.  E.g., Rozenshtein, supra note 5, at 105; Kristen E. Eichensehr, Digital Switzerlands, 167 U. Pa. L. Rev. 665, 712–13 (2019); see also Avidan Y. Cover, Corporate Avatars and the Erosion of the Populist Fourth Amendment, 100 Iowa L. Rev. 1441, 1445 (2014) (arguing that service providers cannot serve a government-checking function because they have vested interests in cooperating with the government); Developments in the Law—More Data, More Problems, 131 Harv. L. Rev. 1715, 1722–23 (2018) [hereinafter Developments—More Data] (explaining how technology companies exercise large amounts of discretion in handling law enforcement requests for information, including by minimizing capacity to respond and slowing down response times). ↑
  9.  See Orin S. Kerr, The Fourth Amendment Limits of Internet Content Preservation, 65 St. Louis U. L.J. 753, 755 (2021); Christopher Soghoian, The Spies We Trust: Third Party Service Providers and Law Enforcement Surveillance 2 (July 15, 2012) (Ph.D. dissertation, Indiana University) (ProQuest); William A. Carter & Jennifer C. Daskal, Ctr. for Strategic & Int’l Stud., Low-Hanging Fruit: Evidence-Based Solutions to the Digital Evidence Challenge 18–19 (2018); Sean E. Goodison, Robert C. Davis & Brian A. Jackson, RAND Corp., Digital Evidence and the U.S. Criminal Justice System: Identifying Technology and Other Needs to More Effectively Acquire and Utilize Digital Evidence 10 (2015); Michael Vermeer, Dulani Woods & Brian Jackson, RAND Corp., Identifying Law Enforcement Needs for Access to Digital Evidence in Remote Data Centers 2 (2018). ↑
  10.  Rozenshtein, supra note 5, at 104‒05, 115‒22; Eichensehr, supra note 8, at 667‒68, 677‒79; Cover, supra note 8, at 1469‒74, 1479, 1481‒84; Developments—More Data, supra note 8, at 1722–23; Michaels, All the President’s Spies, supra note 7, at 908; Michaels, Deputizing Homeland Security, supra note 7, at 1435–36; Elkin-Koren & Haber, supra note 7, at 112–13. ↑

  11.  E.g., Rozenshtein, supra note 5, at 105 (describing a contentious relationship between internet technology companies and law enforcement as the “new normal”). For a critique, see Developments—More Data, supra note 8, at 1724–29. ↑

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