The Privacy Hierarchy : Trade Secret and Fourth Amendment Expectations

This Article examines public expectations of privacy in trade secret and the Fourth Amendment. Using an original, nationally representative survey of over a thousand respondents, we identify two privacy hierarchies. The first hierarchy is between domains: the public believes that surveillance conducted by commercial entities for competitive advantage is a greater violation of privacy than the same surveillance conducted by law enforcement without a warrant for criminal investigations. The second hierarchy involves types of surveillance: the same searches are rated as large (or small) privacy violations regardless of whether they are performed by law enforcement or a private company. From these empirical findings and an analysis of prior doctrine, we argue that Fourth Amendment restrictions on police surveillance should be viewed as a “floor” for trade secret restrictions on commercial surveillance. This approach reverses the relationship between public and private surveillance recently advocated by several prominent scholars and by Justice Gorsuch in his dissent in Carpenter v. United States, yet is consistent with longstanding trade secret doctrine. We argue further that this position provides practical benefits and is normatively justifiable given the differing objectives of trade secret and the Fourth Amendment. Practically, our framework provides guidance to courts that wish to draw upon the larger and more thorough case law of the Fourth Amendment when addressing issues that are novel to trade secret. Normatively, there is less public interest in exposing the trade secrets of companies than there is in investigating crimes. As a result, we believe there should be greater privacy protection in trade secret