UNIVERSITY of NOTRE DAME
Home-Sharing, Ride-Sharing, And Data-Sharing: Fourth Amendment Hurdles Or Local Governance Of The Sharing Economy
Note by Matthew J. Disler
Cities’ attempts to regulate the sharing economy reveal a conflict between local governance interests and Fourth Amendment doctrine. Although sharing economy industries present local problems, from housing affordability and land-use regulations to traffic congestion and sidewalk safety, cities attempt to effectuate their policies through data reporting requirements that are vulnerable to Fourth Amendment challenge. Businesses have successfully argued that cities’ reporting requirements are unconstitutional searches because they have an unreasonably broad scope and lack an opportunity for pre-compliance review.
This Article argues that this impasse results from recent developments that have lent additional confusion to the Fourth Amendment’s administrative search doctrine. First, courts have increasingly focused on the scale of information demanded, rather than the relevance of that information to the government’s purpose. Second, they have emphasized pre-compliance review without explaining what an opportunity for such review looks like for recurrent, discretion-less reports. Finally, they have narrowed the “closely regulated industry” exception by focusing on the perceived dangerousness of a regulated industry, rather than the pervasiveness of government regulation within that industry. The Article proposes solutions to contend with these changes and to clarify how cities can regulate the sharing economy without running afoul of Fourth Amendment interests.
Introduction
Local governments face a new challenge in businesses’ data collection activities.1 On the one hand, this new information presents an opportunity for governance reforms. Cities have enacted surveillance ordinances and open data policies,2 entered into data sharing agreements with private companies,3 and established public-private partnerships to offer services to residents.4 But privately collected data also presents uniquely local difficulties.
Consider firms in the sharing economy. Firms ranging from ridehailing companies Uber and Lyft to the home-sharing platform Airbnb and the freelance labor marketplace TaskRabbit all collect troves of information from their users, from names to locations to behavior on their platforms.5 As John Infranca and Nestor Davidson explain, these services are particularly prevalent and likely to flourish in cities, where merchants are located close to a large, dense population of potential clients.6 Moreover, sharing economy companies’ business models vary: they can own physical assets that customers use for a limited time, like the car rental company Zipcar, or provide a platform that enables peerto-peer transactions, like Uber.7 Even the “sharing economy” moniker does not completely encompass all of the businesses that compile digital data on urban residents. Journalists from the New York Times, for example, recently used a dataset of location information sent by mobile phones and collected by private companies to view the locations of over twelve million people. Using this data, they were able to track other journalists’ movements and identify employees who attended job interviews at competing companies.8
A local government might seek access to some of this privately collected information to further policy aims. To start, many datacollecting businesses operate in areas traditionally regulated by local governments, like housing, hotel licensing, and transit.9 They also create side effects at the local level.10 Apartments removed from the rental market for home-sharing can constrain the housing stock and drive up rent prices.11 Ride-hailing services can decrease public transit revenues, threatening the sustainability of public subways and buses.12 Incumbent industries, like taxis or hotels, may worry that newcomers threaten their businesses.13 A flush of scooters and bikes can crowd sidewalks, annoy pedestrians or drivers, or even cause injuries for riders and passersby.14
Despite these impacts, local data collection often operates in a legal grey area, hindering cities’ ability to regulate the new industries. Though municipal codes historically created extensive requirements for hotels and taxis, the language of these laws do not clearly apply to shortterm rental platforms (which argue that they are not hotels) or ridehailing companies (which argue that they are not taxis).15 This ambiguity allows companies to avoid compliance with the laws by contending that the laws simply do not apply to new industries.16 In response, cities have engaged in a burst of legislative and regulatory activity, crafting ordinances and extending regulations to data-collecting newcomers.17This Article focuses on a central feature of these new laws: provisions that require the regulated businesses send data to city agencies. These data reporting requirements usually do not involve traditional warrants or subpoenas. Unlike one-off searches conducted after a showing of individualized suspicion, they are imposed on all businesses that participate in an industry and mandate information disclosures at regular intervals or continuously. To borrow from Daphna Renan’s terminology in a related context, such local laws are a “programmatic” reporting scheme—an ongoing, regularized means for the government to access information.18
Affiliations
*J.D., Harvard Law School, 2021. I am grateful to Professors Susan Crawford and Daphna Renan for their invaluable comments and feedback on this project, as well as to the editorial team at the Notre Dame Journal on Emerging Technologies for their excellent assistance.
- Privacy Law & Data Protection
Article by Philip M. Nichols
Notre Dame Journal on Emerging Technologies ©2020