{"id":72,"date":"2018-01-31T11:22:06","date_gmt":"2018-01-31T16:22:06","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/?page_id=72"},"modified":"2025-05-12T11:09:44","modified_gmt":"2025-05-12T15:09:44","slug":"cybersurveillance-intrusions-and-an-evolving-katz-privacy-test","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/in-print\/volume-55-issue-1-winter-2018\/cybersurveillance-intrusions-and-an-evolving-katz-privacy-test\/","title":{"rendered":"Cybersurveillance Intrusions and an Evolving Katz Privacy Test"},"content":{"rendered":"

Cybersurveilllance intrusions necessitate a different Fourth Amendment test than the privacy test set forth by the Supreme Court in Katz v. United States<\/em>1<\/sup> 50 years ago. As part of the Symposium, Katz at 50: The Fourth Amendment in the Digital Age<\/em>, this Article aims to illustrate why the transformation of Fourth Amendment doctrine is not only necessary with the increasing adoption of cybersurveillance technologies, but has already begun.2<\/sup> Courts are increasingly confronted with the constitutional implications of mass surveillance made possible by big data governance.3<\/sup> For example, suspicionless mass data collection, predictive analysis, and ex ante <\/em>policing all present emerging and unresolved constitutional issues.4<\/sup><\/p>\n

To contextualize why a new approach to the Fourth Amendment is essential, this Article describes two emerging cybersurveillance tools. The first cybersurveillance tool, Geofeedia,5<\/sup> has been deployed by state and local law enforcement.6<\/sup> Geofeedia uses a process known as \u201cgeofencing\u201d to draw a virtual barrier around a particular geographic region, and then identifies and tracks public social media posts within that region for predictive policing purposes.7<\/sup> The second tool, Future Attribute Screening Technology (FAST), is under development by the United States Department of Homeland Security (DHS).8<\/sup> FAST is another predictive policing tool that analyzes physiological and behavioral signals with the goal of identifying \u201cmalintent\u201d: an individual\u2019s predilection for disruptive or violent behavior.9<\/sup> Both Geofeedia and FAST seem to fall outside the scope of protections afforded by existing Fourth Amendment jurisprudence.10<\/sup><\/p>\n

Under the Fourth Amendment, unreasonable searches and seizures are prohibited\u2014but reasonable searches may be permissible. For 50 years, Katz v. United States<\/em>11<\/sup> has defined the federal courts\u2019 approach to evaluating what is a \u201creasonable\u201d law enforcement action under the Fourth Amendment. The Katz <\/em>test assesses whether law enforcement has violated an individual\u2019s \u201cconstitutionally protected reasonable expectation of privacy.\u201d12<\/sup> This test is traditionally used to determine whether a search has occurred within the meaning of the Fourth Amendment.13<\/sup> Katz <\/em>focuses on whether an individual intended to keep information private14<\/sup> and whether information had been previously disclosed.15<\/sup> Technological developments, however, may change which expectations of privacy are \u201creasonable,\u201d calling the continued viability of the Katz <\/em>\u201creasonable expectation of privacy\u201d test into question.16<\/sup><\/p>\n

Thus far, the Supreme Court has begun to discern implications of big data governance structures and policies. In the 2012 case of United States v. Jones<\/em>,17<\/sup> the Court considered the constitutionality of warrantless GPS tracking.18<\/sup> During oral argument, several Justices signaled a concern that GPS geolocational data collection could extend beyond one GPS device attached to a single vehicle in the course of a small data investigation.19<\/sup> Specifically, members of the Court expressed concern that GPS devices could be attached to all vehicles,20<\/sup> and speculated, for example, Departments of Motor Vehicles could include GPS devices on license plates.21<\/sup> The Court discussed the potential for universal GPS tracking of every vehicle to be mandated under state or federal law22<\/sup> or standardized in vehicle manufacturing.23<\/sup><\/p>\n

The government attempted to assuage the Court\u2019s concern over the specter of mass surveillance by pointing out that \u201c[t]his case does not involve universal surveillance of every member of this Court or every member of the society. It involves limited surveillance of somebody who was suspected of drug activity.\u201d24<\/sup> Ultimately, the Court refrained from engaging in a full analysis of whether Katz<\/em>\u2019s reasonable expectation of privacy was applicable in a warrantless GPS tracking context. Instead, it resorted to an approach to the Fourth Amendment analysis that relied on trespass theory, which, as the Court explained, is an alternative to Katz<\/em>.25<\/sup> Taking a narrow approach, the Court held that \u201cthe Government\u2019s installation of a GPS device on a target\u2019s vehicle, and its use of that device to monitor the vehicle\u2019s movements, constitutes a [Fourth Amendment] \u2018search.\u2019\u201d26<\/sup><\/p>\n

Similarly, in the 2014 case of Riley v. California<\/em>,27<\/sup> the Court considered whether a warrantless search of a cell phone incident to arrest violates the Fourth Amendment.28<\/sup> During oral argument, the Court grappled with the difference between a search of a cell phone and a search of an individual\u2019s other effects in a search incident to arrest.29<\/sup> Digital data, as the Court pointed out, is different because \u201ca person can only carry so much on their person . . . [but] with digital cameras people take endless photos and it spans their entire life.\u201d30<\/sup> The Court also noted the potential for abuse if it approved a warrantless search of a phone incident to arrest, positing that a person could be arrested for a minor traffic infraction, and then officers could search the individual\u2019s phone to learn virtually every detail of the arrestee\u2019s life.31<\/sup> In a unanimous opinion, Chief Justice Roberts refused to extend search incident to arrest precedent to cell phones, holding that a warrant is required before a search of an arrestee\u2019s cell phone.32<\/sup> Despite being hailed as victories for privacy advocates,33<\/sup> neither Jones <\/em>nor Riley <\/em>identify a limiting principle for government intrusion through comprehensive dataveillance and cybersurveillance means.34<\/sup><\/p>\n

The Court, however, was not blind to the need for a dramatic revision of Fourth Amendment protections. During oral argument in Jones<\/em>, and in concurrences by Justices Alito and Sotomayor, the Court suggested that a nonintrusion test may be more appropriate given the scope of developing technology. A nonintrusion test is grounded in customary law, replacing an interpretation of the Fourth Amendment that is currently grounded in property and tort law, and presents a way to untether concepts of privacy from nondisclosure.35<\/sup><\/p>\n

This Article proceeds in three parts. Part I explores how precrime rationales justify preventive policing through big data cybersurveillance systems. This discussion helps to lay a foundation for why a nonintrusion test provides a method to address Fourth Amendment concerns in the context of large-scale suspicionless data surveillance and seizures. Part II discusses why suspicionless data screening programs fall outside Fourth Amendment protections against unreasonable searches and seizures under Katz<\/em>. Katz<\/em>\u2019s reasonable expectation of privacy test may not protect the data relied upon by contemporary cybersurveillance programs. Nonetheless, these programs implicate Fourth Amendment concerns, as well as other constitutional rights. Part III argues that a nonintrusion test is more appropriate in these arenas than is Katz <\/em>because of the nature of big data technology, cybersurveillance, and bulk data collection practices. This Article concludes by arguing that, due to rapid technological changes, the evolution of the Fourth Amendment is now necessary, and the adoption of a non-intrusion test may provide greater protections to constitutional freedoms than the Katz <\/em>privacy test.<\/p>\n

Keep Reading<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Cybersurveilllance intrusions necessitate a different Fourth Amendment test than the privacy test set forth by the Supreme Court in Katz v. United States1 50 years ago. As part of the […]<\/p>\n","protected":false},"author":28,"featured_media":0,"parent":98,"menu_order":4,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-72","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/72","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/users\/28"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/comments?post=72"}],"version-history":[{"count":2,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/72\/revisions"}],"predecessor-version":[{"id":1662,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/72\/revisions\/1662"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/98"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/media?parent=72"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}