TABLE OF CONTENTS I. INTRODUCTION 421 II. BACKGROUND 422 A. The Evolution of Surveillance Techniques 422 B. The Fourth Amendment's Protections 424 C. The Supreme Court's Electronic Surveillance Cases 426 D. Permutations of Katz: The Mosaic Theory and Third-Party 428 Doctrine E. The Supreme Court's New Understanding in Carpenter 429 F. Post-Carpenter Lower Courts 430 1. Remote GPS Tracking of Vehicles: United States v. 431 Diggs 2. Pole Cameras: Tuggle, Moore-Bush, and Hay 432 3. Surveillance from the Sky: LOABSv. Baltimore 433 4. Commonality of Issues and the Need for a New Standard 434 III. ANALYSIS 434 A. Problems Protecting Privacy 434 B. A New Test for a New Era 437 1. Retrospective v. Prospective Nature of the Information 437 Collected 2. Extent of the Government Monitoring 439 3. The Length of the Surveillance Period 440 4. Whether the Information Collected in Effect Intrudes 442 Upon a Reasonable Expectation of Privacy the Person Would Have in a Place or Thing IV. CONCLUSION 443
I. INTRODUCTION
The perennial debate over the balance between public safety and personal privacy presents vexing questions about the scope of governmental authority. Should the government be able to watch a person in public forever even if there is no reason to think they are doing anything illegal? What if they decide to monitor the outside of someone's home for months on end, around the clock, hoping to catch them doing something suspicious that will allow officers to apprehend them or search their home? (1)
A central legal question in the 21st Century has been how to understand the Fourth Amendment's protections in the context of the digital age. The Supreme Court and the lower federal courts have frequently grappled with how to apply the Fourth Amendment to modern surveillance technologies, which have given the government capabilities far beyond anything the founding generation could have imagined. (2,3) Such technologies include drones, (4) stationary pole cameras, (5) and artificial intelligence systems that aggregate data collected from street cameras and license plate readers. (6)
The Supreme Court has said that one of the Fourth Amendment's goals is "to place obstacles in the way" of police surveillance that is overly pervasive. (7) Despite this sentiment, the Court has been reticent to create clear rules and standards to govern uses of advanced surveillance technologies.
It is time for the Supreme Court to develop a new test to define when surveillance becomes too widespread, detailed, and targeted such that even limiting deployment to public areas encroaches on an individual's right to privacy. The proposed test would be two-pronged. The first prong of the test should be based around factors the Supreme Court has articulated in previous Fourth Amendment cases where the technology: (1) creates a historic record of information that can be stored and perpetually utilized; (2) gives government agents the ability to monitor persons or areas with superhuman precision; and (3) is prolonged and complete to the point where they are constructively treating the person as the target of a criminal investigation. If law enforcement seeks to use technology that meets the factors of this test, then at minimum a warrant supported by probable cause should be required. The second prong of the test would be that if one of the factors above is lacking, but the technique at issue is so extreme in some respect that it intrudes upon an individual's expectation of privacy in the totality of their movements, then it would similarly require a warrant supported by probable cause.
This Note examines a current gap in the Supreme Court's Fourth Amendment jurisprudence, which deals with the use of these technologies to track individuals in public areas. Section II will discuss the history of Fourth Amendment jurisprudence, how it has been applied to electronic surveillance, and the live legal issues that form the basis of this Note's analysis. First, in Section II-A the Note will discuss some of the modern technologies that have complicated existing privacy law jurisprudence. Next, Section II-B will delineate the governing test used to determine when government actions violate a person's right to privacy. Section II-C through II-E will discuss the Supreme Court's applications of this test to forms of electronic surveillance. Finally, Section II-F will explore the most recent lower court decisions and the conflicting nature of their rulings pertaining to the lawfulness of various forms of electronic surveillance. Section III will restate the problem presented by advanced forms of surveillance and explain the two-prong test this Note proposes for courts to use in evaluating governmental surveillance techniques. Section IV will restate the conclusions of this Note, highlighting the need for a new privacy test for modern surveillance technologies.
II. BACKGROUND
A. The Evolution of Surveillance Techniques
Surveillance techniques, as they have advanced, can generally be described as improving two modes of surveillance capability: (1) how much information can be obtained about a target and (2) how many targets can be monitored at once. (8) Surveillance techniques are obviously not developed by legal professionals, and often Fourth Amendment doctrine can be slow to adapt to technological advances utilized by law enforcement. (9)
While there are too many technologies to list individually in this section, the surveillance technologies that have received the most attention from courts, and those with which this Note is concerned, are best described as "enhanced audio-visual surveillance" or "persistent video surveillance." These terms collectively refer to technologies that allow law enforcement to observe persons, hear communications, and monitor locations that they would ordinarily not be able to, either because of limited human capabilities or limited law enforcement resources generally. (10)
Another key development in surveillance technology is the ability of security systems to efficiently aggregate and filter data from multiple sources, in order to identify patterns of behavior and alert police to potential investigative targets, such as the many street cameras that populate urban areas or automatic license plate readers. (11) This use of automated systems to uncover suspicious behaviors has been analyzed as a potential Fourth Amendment violation in and of itself. (12) For the purposes of this Note, it is simply relevant in illustrating that the aggregation of surveillance data presents and will continue to cause significant concerns as data collection systems improve in capacity and become more widely distributed. (13)
"Big Data" (14) analytics and Artificial Intelligence (AI) (15) systems, which analyze the information gathered by these tools, have been shown to have concerning applications with respect to social media platforms and law enforcement. (16) Two examples exemplify these emerging issues. The first is a cyber-surveillance tool called Geofeedia, which is an A.I. platform service that uses analytics to track social media posts by location; the tool does this through "a process known as 'geofencing' to draw a virtual barrier around a particular geographic region," and is able to collect and analyze public social media posts within that demarcated area. (17) This tool has been used by law enforcement, and has sustained public scrutiny and criticism for its use in monitoring domestic protests in the United States. (18)
The second example of a collaboration tool between data analytics technology and law enforcement is "Future Attribute Screening Technology" (FAST). FAST, which has primarily been developed by the Department of Homeland Security (DHS), is another data analytics tool that filters "physiological and behavioral signals with the goal of identifying 'malintent': an individual's predilection for disruptive or violent behavior." (19) FAST was developed post-9/11 to aid law enforcement in identifying security threats by utilizing complex algorithms to identify vital signs (heart rate, eye movements, respiratory quality, etc.) associated with bad intent, deception, and malice. (20) These technologies have not been litigated to any significant extent by the courts, but even if they were, for reasons discussed below, they would likely not be regulated by current Fourth Amendment doctrine. See infra [section] III.A.
A final area that is worthy of note is facial recognition technology. Facial recognition technology allows law enforcement to compile facial images from driver's license records, previous bookings, and social media accounts, and then use computer algorithms to effortlessly compare them to monitor and identify individuals in real time. (21) While it may surprise some readers, facial recognition has existed since the beginning of this century and was first deployed by law enforcement agents in England. (22) As of the writing of this Note there has been no prominent case law discussing the legality of these systems in the criminal context, and action pushing back against them has largely been either through legislation or civil suits. (23) Given the potential for abuse that this catalog of personal information could pose, it is likely to be the subject of litigation in the near future.
B. The Fourth Amendment's Protections
The Fourth Amendment to the United States Constitution provides that searches and seizures by the government generally require a warrant supported by probable cause. (24) If a governmental action is considered a search, it requires a showing of probable cause by law enforcement that a crime has been or will be committed and that the search is needed to uncover evidence of that crime. (25) Otherwise the governmental action is unconstitutional and evidence gathered from the unlawful search is generally suppressed. (26) This is the central policy question underlying the debate over the...
