William & Mary Bill of Rights Journal


Cities in the United States have started to enact data sharing rules and programs to access some of the data that technology companies operating under their jurisdiction— like short-term rental or ride hailing companies—collect. This information allows cities to adapt to the challenges and benefits of the digital information economy. It allows them to understand what the impact of these technology companies is on congestion, the housing market, the local job market, and even the use of public spaces. It also empowers cities to act accordingly by, for example, setting vehicle caps or mandating a tailored minimum pay for gig workers. These companies, however, sometimes argue that sharing this information violates their users’ privacy rights and their own privacy rights, because this information is theirs; it is part of their business records. The question is thus what those rights are, and whether it should and could be possible for local governments to access that information to advance equity and sustainability, without harming the legitimate privacy interests of both individuals and companies. This Article argues that within current Fourth Amendment doctrine and privacy law there is space for data sharing programs. Privacy law, however, is being mobilized to alter the distribution of power and welfare between local governments, companies, and citizens, within current digital information capitalism to extend those rights beyond their fair share and preempt permissible data sharing requests. This Article warns that if the companies succeed in their challenges, privacy law will have helped shield corporate power from regulatory oversight, while still leaving individuals largely unprotected and submitting local governments further to corporate interests.