The Fourth Amendment’s prohibition against unreasonable searches and seizures could prevent law enforcement from applying increasingly sophisticated surveillance and predictive policing technology, including “superhuman” methods employing artificial intelligence, according to a professor at the University of California-Davis School of Law.
In an essay published in the Ohio State Journal of Criminal Law, Elizabeth E. Joh argues that the recent U.S. Supreme Court decision in Carpenter v United States established a precedent for using the Fourth Amendment to limit the use of emerging technology, ranging from drones that help patrol borders to predictive-analytic software that can determine when and where the next crime will occur.
In that landmark case, decided this summer, the Court ruled law enforcement cannot access citizens’ cellphone location records without a search warrant. Although the decision focused on whether information held by “third parties” such as cellphone providers was subject to privacy protections guaranteed under the Constitution, Joh said it also touched on the changing “nature of policing” ─specifically the technologically enhanced means law enforcement can now exploit to gather information in the cyber era.
In the Carpenter case, justices were asked to rule on whether FBI agents sidestepped their constitutional obligations to show “probable cause” for obtaining a search warrant to retrieve the locational data of a suspected serial robber’s cellphone to prove he was near the scene of stores in the Detroit area where thefts had occurred. The agents had instead applied for an order under the federal Stored Communications Act.
In her essay, titled “Artificial Intelligence and Policing: Hints in the Carpenter Decision, Joh cited Chief Justice John Roberts’ assertion that while technology can be a useful tool for law enforcement, its use also raises the risk of the kind of government “encroachment” on personal liberty that the framers of the Constitution sought to prevent.
“Rapid advances in technology are changing Fourth Amendment boundaries,” Joh wrote. “Lower courts are already grappling with how to apply Carpenter’s new protections.”
Joh also noted the dissenting opinion from now-retired Justice Anthony Kennedy, who warned that the ruling could unduly interfere with law enforcement’s legitimate efforts to investigate and counter serious crimes.
“The new rule the Court seems to formulate puts needed, reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes,” Kennedy wrote.
But Joh argued that the majority decision effectively showed that police applications of artificial intelligence, which uses machine-created algorithms to approximate human thinking, could also be blocked under the Court’s interpretation of the Fourth Amendment.
“Artificial intelligence has begun to change the capabilities of the police, by permitting them to do what was once nearly impossible or impracticable,” Joh wrote, noting that it allows them to access to vast amounts of data scooped up by automated technologies and stored in the “cloud.”
“Resource constraints always checked traditional surveillance discretion,” she wrote.
“There are never enough officers nor enough money for cameras and other machines. But machine-generated analyses have changed that calculus.
“The police today enjoy a surfeit of data that can be collected, stored, mined, and sifted through easily and cheaply: license plate data, social media posts, social networks, and soon our own faces.”
Even though artificial intelligence did not specifically enter into the Carpenter ruling, Joh said the Court effectively developed a template for assessing how constitutional protections should be applied to so-called “superhuman” technologies which processed data faster and cheaper than ordinary human beings could, in an environment where urban life was increasingly policed by automated or cloud-based systems.
“If I am right about the Court’s forward-looking approach to the Fourth Amendment and policing methods, that may begin to cast doubt on the extreme deference courts have given to the judgments of human police officers,” she wrote.
The essay may be downloaded here.
J.Gabriel Ware is a TCR news intern. Readers’ comments are welcome.