Predictive Surveillance and the Threat to Fourth Amendment Jurisprudence

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This Article explores how the use of predictive surveillance to prevent terrorist and criminal activity may shape Fourth Amendment law. Predictive surveillance refers to a potential model of surveillance in which government collects data in bulk and then uses predictive analytics to detect patterns indicating terrorist or criminal activity. The existing model of surveillance regulation presumes that the government’s first step is to target a specific person. Therefore, the first analytical step in evaluating the constitutionality of a given surveillance practice is to determine whether the government had sufficient particularized suspicion about the target. Predictive surveillance, however, confounds the existing model because it requires collection of massive amounts of data with no particularized suspicion. Despite that disconnect, judges will face great pressure to twist existing doctrine rather than ban the data collection that the government claims is necessary to fight terrorism or crime. Assuming that courts will be predisposed to find predictive surveillance constitutional, this Article explores the various doctrinal approaches that courts could take to approve predictive surveillance and assesses the risk that each approach poses to Fourth Amendment doctrine.

Part I introduces the concept of predictive analytics and describes predictive surveillance as a potential application of predictive analytics. Part II first identifies the technical and political challenges that the government will face if it tries to implement predictive surveillance and then discusses the reasons to believe that researchers and political actors will overcome these challenges. Part III describes why predictive surveillance threatens Fourth Amendment doctrine itself and offers a cautionary tale of how courts evaluating a prior mass surveillance program twisted the statutory language to authorize the program. Part IV discusses the different ways that courts could apply the Fourth Amendment’s third-party and public-exposure doctrines to predictive surveillance and then assesses how each approach could affect the development of those doctrines. Finally, Part V discusses the different ways that courts could apply the Fourth Amendment reasonableness standard to predictive surveillance and assesses how each approach could affect the reasonableness standard.


Originally published in 2017 by I/S: A Journal of Law and Policy for the Information Society.