Remember reading Google’s terms of service? Neither does anyone else, because nobody does. We all click on the “yes” link that we’ve read and agreed to it because otherwise we can’t do whatever it is we were trying do when the TOS link popped up, and it’s not as if reading it opened up the possibility of engaging in negotiation with Google about what was fine and what was not so fine. It was take it or leave it, and leave it meant we didn’t get to use gmail, or whatever feature brought us there.

In legal parlance, one might characterize it as a “contract of adhesion.” Courts, on the other hand, treated it as if it was a legitimate contract, one that people entered into knowingly and willingly. After all, you clicked “yes,” didn’t you?

Orin Kerr has argued that people do not forfeit their Fourth Amendment protections against warrantless search and seizure by agreeing to Terms of Service, and to a limited degree, the Second Circuit has agreed with him, including a cite to his latest law review article on the issue.

This Article argues that the courts are wrong. Terms of Service have little or no effect on Fourth Amendment rights. Fourth Amendment rights are rights against the government, not private parties. Terms of Service can define relationships between private parties, but private contracts cannot define Fourth Amendment rights. This is true across the range of Fourth Amendment doctrines, including the “reasonable expectation of privacy” test, consent, abandonment, third-party consent, and the private search doctrine. Courts that have linked Terms of Service and Fourth Amendment rights are mistaken, and their reasoning should be rejected.

A brilliant assertion, since we all know that brilliant people agree with Orin and I can succumb to confirmation bias as well as the next guy. But much as I want Orin’s argument to be correct, there have been a great deal of caselaw informing me that I’m mostly wishcasting. Of particular note is the Third Party Doctrine, which has largely meant that everything tech we use is exposed to the government since it’s exposed to our tech overlords at their will. Says who? Says their terms of service. Remember clicking “yes” to that thing you never bothered to read?

But the Second Circuit fixated on the specific wording used in Google’s TOS, holding that it distinguishes what “is” from what “may” be.

The government argues that Maher’s expectation of privacy in the Maher file that he emailed to his own Google account was extinguished by Google’s Terms of Service, which advise users that Google (1) “may review content to determine whether it is illegal or violates our policies,” App’x 113, (2) “may” report “illegal content” to “appropriate authorities,” id. at 142, and (3) “will share” users’ information with law enforcement when necessary to comply with applicable law, id. at 131.

This court has not had occasion to address what effect, if any, a private company’s terms of service might have on a defendant’s reasonable expectation of privacy. It may well be that such terms, as parts of “[p]rivate contracts[,] have little effect in Fourth Amendment law because the nature of those [constitutional] rights is against the government rather than private parties.” Orin S. Kerr, Terms of Service and Fourth Amendment Rights, 172 U. PA. L. REV. 287, 291 (2024) (summarizing case law). We need not here draw any categorical conclusions about how terms of service affect a user’s expectation of privacy as against the government. On this appeal, it suffices that we conclude that Google’s particular Terms of Service—which advise that Google “may” review users’ content, App’x 113—did not extinguish Maher’s reasonable expectation of privacy in that content as against the government.

There are two very big “ifs” involved in this otherwise great ruling. The first is that the ruling relies explicitly on the use of the word “may,” concluding that if the language says “may,” that means it also “may not.” And if it may not, then the user’s expectation of privacy is reasonable. That is one thin thread.

Since the TOS says “may,” it means that the choice of whether or not to look at the private content of your emails is entirely up to Google. You don’t get a say. You can’t stop Google. You’ve willingly handed over your privacy to Google. While Google isn’t the government, what happened to the Third Party Doctrine? There’s no mention of that in the court’s rationale.

This second big “if” is that it depends on the usage of the word “may.” All that need happen to extinguish the reasonable expectation of privacy going forward is for Google to change the word in its TOS from “may” to “will.” Poof. All gone. And you wouldn’t even know it if they changed the word because you, like the rest of us, will never read the TOS.

Much as I want to believe that Orin is right and that TOS cannot, and do not, constitute a forfeiture of our right to be free of unreasonable searches and seizures, Judge Reena Raggi’s hanging the Maher ruling by a thread doesn’t resolve the issue. Indeed, the decision expressly states that it’s not addressing the bigger issue such that we can rest assured that our gmail emails are private.

We need not here draw any categorical conclusions about how terms of service affect a user’s expectation of privacy as against the government.

We could really use a categorical conclusion on the issue, knowing that we still have a reasonable expectation of privacy in our technologically-dependent and technologically-pervasive world. While this decision was clearly better than a decision that went the other way, it’s still not the ruling that will protect users from the extinguishment of their rights under those terms of service to which we mindlessly click “yes.”