Matthew Tokson, Professor of Law, University of Utah S.J. Quinney College of Law
This Article offers the first systematic analysis of inescapability in Fourth Amendment law. It challenges the prevailing wisdom that inescapability is a desirable or workable basis for Fourth Amendment protection. Inescapability does not provide a conceptually coherent standard for courts to apply. It incentivizes consumers to forego beneficial technologies, creating substantial social harms. It fails to adequately protect the most sensitive forms of personal information. It creates doctrinal confusion and ignores established precedents that contradict the inescapability model. Moreover, inescapability analysis elides individual differences—technologies that are avoidable for most people may be unavoidable for others, including the disabled, the poor, and other disadvantaged populations.
Benjamin T. Van Meter
This Note argues that to prevent the most damaging consequences of the trade in genetic data, U.S. law should impose tailored fiduciary duties on private genetic testing companies to ensure that their business practices do not harm their own customers. These testing companies rely on their customers’ genetic information to turn a profit, while all of the risk of this information’s exposure or misuse falls on customers.