Your Robotaxi Is Watching You. Does the Fourth Amendment Care?

The Fourth Amendment restrains the government, not private actors like Waymo, as the Supreme Court settled over a century ago in Burdeau v. McDowell. Thus, when a private party searches or records on its own initiative, the Fourth Amendment does not apply, however intrusive the conduct may be. The Court extended the private actor principle in United States v. Jacobsen. FedEx employees opened a damaged package, found white powder, and called DEA agents. The agents’ visual inspection of the opened packages was no search because it did not exceed what the private party had exposed. Waymo’s monitoring and reporting fit that rule. This doctrine has an important limit. A private party becomes a government actor when it serves as the state’s instrument or agent, as in Skinner v. Railway Labor Executives’ Association, where federal rules encouraged and shaped drug testing by private railroads. As of this publication, there is no public information that suggests police asked Waymo to watch riders for guns. The analysis changes if they direct Waymo to watch a rider, stream a cabin feed, or prevent someone from leaving.