Technology is Eroding the Fourth Amendment. Can Courts Stop it?

-- By JessicaCorey - 06 Mar 2017

A Radically Different Fourth Amendment

The Fourth Amendment was drafted and ratified under two assumptions that do not still hold true today, first, that the largest invasion of a person’s privacy is associated with their home, and second, that law enforcement has restricted resources and therefore cannot invade privacy on a large scale. Technology has radically changed these two assumptions and Courts have been slow to catch up, allowing for large gaps in 4th amendment law. According to the Pew Research Center, at least two-thirds of Americans now own smartphones and 84% of Americans own a computer.1 As we know, computers and Smartphones contain vast amounts of personal data all available in one location. With the advent of new technology, personal data is now not just on our phones and computers, but can be available online through social media, with our digital assistants, such as Amazon’s Alexa, our fitbits and smartwatches, and even our lights and thermostats, such as the nest thermostat. With 90% of the world’s data created in the last two years, increasing the use of these devices will only continue to exacerbate the amount of personal data that is collected.2 Because these devices have immense informative capabilities that can be easily exploited by law enforcement and other government agencies, it is up to the courts to ensure that the fourth amendment is protected in the wake of all this new technology.

Data Mining

The concern surrounding this debate is that of “data-mining.” Data mining can be loosely defined as “searches of one or more electronic databases of information concerning U.S. persons, by or on behalf of an agency or employee of the government.”3 This can include searches done by either persons or artificial intelligence of information that can be gathered using electronic services. More specifically, data mining can be grouped loosely into two categories: subject-based, which involves gathering and analyzing information about a specific individual, or pattern-based, which involves analyzing information to identify patterns of transactions or behaviors that may correlate to suspect behavior. As we can see, because law enforcement or government agencies do not have to physically intrude upon an individual's space to gather a wealth of information about them, nor do they have to worry too much about scarcity of resource, since with artificial intelligence they can have AI do all of the gathering and analyzing work for them, the traditional assumptions of the fourth amendment do not offer much protection against data-mining. Data mining can allow law enforcement agencies to piece together puzzles and suspect individuals that they never would have otherwise, which is one of the greatest fears behind the power of data mining.

Court's Involvement

While originally, under In Re Directives, the Court ruled that data gathered must be for the special need of national security purposes and not for “garden variety criminal investigations,”4 a recent ruling by the Foreign Intelligence Surveillance Court in 2015 ruled that while information collected by the NSA must be for "foreign intelligence" purposes during the initial collection. However, once they have that information, it can be searched by the FBI for regular criminal investigations without any need for a warrant or prior court involvement.5 This is an incredible erosion of the protections of the fourth amendment.

Scope of Data Mining

Data mining becomes particularly scary when the depth and breadth of it is realized. The general populous is aware of many of the high-tech surveillance techniques such as cameras, drones, GPS tracking, and cellphone collection. However, few people understand how that technology can link to provide a very detailed picture of an individual life. Knowing you called a certain number (cell data), drove to a certain house (drone or camera), and repeated that trip every week (GPS) pales in comparison to knowing those facts plus the time the bedroom light comes on in that house (nest thermostats), the elevated heartbeat in that bedroom (fitbit), and the opening of a particular pill bottle (smart pill bottles), unusual electricity use at your house (smart lights), etc. all of which might provide law enforcement a clear picture of a person’s life without ever entering their home. This example represents the problem of aggregation; police may no longer need to physically follow a suspect--smart technology allows them to do that remotely. The Fourth Amendment does not currently protect information shared with third parties. If police wanted to obtain the data provided by the suspect's smart appliances directly from the company who monitors those appliances, they can without much Fourth Amendment difficulty. Luckily however, many of these companies have shown that they will not share data with law enforcement unless forced to. However, the fact that police can search and aggregate so much personal data should be a concern to anyone, especially in wake of the case allowing the FBI to use already gathered information in criminal prosecutions.

A Possible Solution?

One possible solution the Courts can use is to shift to what scholars are calling the Mosaic theory of the fourth amendment. The mosaic theory suggests that while an individual data point collected by the police may not constitute a search, an aggregation of many personal data points by the police would constitute a search as it paints a larger picture than any one data point alone which.6 While the mosaic theory would help protect subject-based data mining, it does not do much in the way to protect against pattern-based data mining, as pattern based data mining is looking for trends, not anyone individual person. The other difficulty is at what point does data collection constitute a search? It will be difficult for the courts to delineate exactly when the line is crossed. Ultimately, I believe it is a step in the right direction to work to maintain the protections of the fourth amendment in wake of ever growing new technology. The Courts must be on top of this issue to protect our fundamental liberty.

Sources

Why make footnotes consisting of URLs in writing for the Web? Make links out of them, so the reader can follow up with a click. What possible benefit accrues from making reading harder?

1. http://www.pewinternet.org/2015/04/01/us-smartphone-use-in-2015/

2. https://www.sciencedaily.com/releases/2013/05/130522085217.htm

3. Tech. & Privacy Advisory Comm., Dep’t of Defense, Safeguarding Privacy in the Fight Against Terrorism xiii (2004),

4. https://fas.org/irp/agency/doj/fisa/fiscr082208.pdf

5. https://www.dni.gov/files/documents/20151106-702Mem_Opinion_Order_for_Public_Release.pdf

6. Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311, 313 (2012)

One half-baked law review article doesn't make a "what scholars are calling." As we discussed, the meaning of the word "search" has changed. The whole business of marching up one side of the hill and down the other in the Michigan law review means no more than that. Calling the assembly of knowledge in another man's brain (silicon or carbon) a "search" is not going to make the constitutional provision work any better than calling the defense budget "quartering."

This draft's primary problem was that it spent all but the last paragraph on explaining a problem and that last paragraph advertising a law review article which somehow contained a magic alternative. But the problem was the problem I spent two weeks explaining, and the magic solution is just another lengthy way of explaining with many footnotes and a delicious obtuseness the same problem all over again. What would make the most improvement in the draft would be to shorten the explanation of the problem, on which we can agree, and to offer some actual (not taken from Kerr) suggestions about decisions the courts could make, probable or improbable politically as they may be, but sound legally, for the retention of constitutional integrity.