The Fourth Amendment – Future Technologies

Last Friday we considered the question, Is technology driving jurisprudence? Today we’ll discuss some of these technologies.

Perhaps the first such “new” technology that will confront the Court is the pervasive use of surveillance cameras. Such cameras, with ever increasing frequency, are being installed on office buildings, banks, stores, and other private establishments. Because private citizens most often employ these cameras it has not so far presented Fourth Amendment questions. However, police departments have begun to use traffic cameras as a form of visual surveillance to track individuals as the move about the city. The New York Police Department adopted the policy of videotaping individuals engaged in lawful during the Occupy Wall Street demonstrations. In 2009, Chicago had 1500 cameras set up throughout the city and actively used them to track people of interest. See Wall Street Journal-Tech Journal, Chicago’s Camera Network is Everywhere, November 17, 2009.

Such surveillance cameras are also being used in conjunction with facial recognition software. Where the police have set up surveillance cameras at airports other public events they have used software that permits the cameras to scan the faces of the public and attempt to match those digital images with the digitally recorded faces of known terror suspect and other persons of interest. Similarly, iris scanners are now in existence that can scan up to fifty people a minute without requiring the individuals to stop and stand in front of the scanners. See Gizmodo, The End of Privacy: Entire City to Track People with Public Eye-Scanners, August 18, 2010.

Cell phones will also enable the government so track the whereabouts of its citizens. Law enforcement has long been able to subpoena cell tower records to determine the approximate location of a cell phone user be means of “pings,” or electronic signal emitted from the cell phone to one of the nearest towers. Smart phones now come with built in GPS capability that stores data concerning the relatively precise movements of the phone. Of course, GPS devices in cars could also store similar data. Although this information is currently in the possession of private corporate entities, as noted in the Jones decision, thorny Fourth Amendment issues would arise if the government used its power to regulate interstate commerce to require such data to be made available to the government without the necessity of a subpoena or warrant.

Drones, or remote-controlled aircraft used extensively in military operations are now being used by domestic law enforcement agencies. The devices are becoming smaller and there is no doubt they will soon be able to buzz about out cities undetected by all but the most observant individuals. It will soon be feasible that such a device will be employed to track the movements of a “person of interest”.

In much the same way as the GPS device was employed to track the movements of Mr. Antoine Jones, AeroVironment, a small drone manufacturer, has a video posted on its website depicting police officers chasing a suspect to his home and then opening the trunk of one of their patrol cars and pulling out what looks like a toy model aircraft with for rotors and a video camera, they then launch the aircraft and monitor the suspects movements though a video feed on an computer tablet. Although this surveillance by electronic means may not currently seem different in kind than old fashioned street surveillance by a law enforcement officer, once these drones employ telescopic lenses that can detect what a suspect is reading, or audio-equipment that can overhear a suspect conversation from the distance of a mile, Fourth Amendment privacy concerns will surely be implicated.

Drones may be used not only to physically observe individuals, they could be used to “pirate” Wi-fi data. A group of professor at Stevens Institute for Technology created an inexpensive aerial drone, the SkyNET, that may be used to fly into a target Wi-Fi network and monitor all the data being transmitted over the network.

Currently the U.S. government engages in the practice of data-mining, i.e., collecting massive amounts of email and telephonic data and searching it for key words such as “al qaeda.” The government’s position is so long as either the recipient or sender is outside the U.S. there are no Fourth Amendment implications to these searches. See All Things Considered, on N.P.R., A Tech Fix for Illegal Government Snooping, July 13, 2009. There are some who believe that the government has in fact engaged in domestic warrantless data mining. In addition, it seems subject to reasonable debate as to whether such data mining may indeed implicate the Fourth Amendment when either the sender or recipient is on U.S. soil.

Another possible concern may be the government use of “white-hat” hackers. Recently National Public Radio profiled a firm called Vupen that researches security vulnerabilities in ordinary software and sells the results of that research the U.S. Government and other governments in order that those governments may then use that information to hack into the computers of any perceived enemy of the state. Although there are no cases now in which the government has attempted to introduce evidence that was procured by means of warrantless hacking, and such warrantless hacking likely clearly be an invasion of a reasonable expectation of privacy, it would not clearly violate Scalia’s property rights focused interpretation of the Fourth Amendment. See All Things Considered, Hacking for Sale: Lucrative Deals for Security Firms, April 9, 2012.

The Court’s decision in Jones offers little guidance with respect to how the warrantless implementation of these technologies will be resolved in the future. In an effort to protect citizens from 1984 style pervasive government surveillance the Court may consider their use to be violations of a reasonable expectation of privacy. On the other hand, unlike the dystopic society depicted in 1984, much of this pervasive surveillance and data tracking is currently in the hands of private individuals and corporations, and the Court, in this information age, may assume that people have much narrower expectations of privacy in relation to digital surveillance, and absent a physical trespass on private property, permit the government the same access an individual’s information that many corporate and individual citizens currently enjoy. Given the widespread access to such private information as bank records, health records and cell phone information and use by means of subpoenas, it seems likely that in the very least even if the Court curbs the warrantless access to such data by means of the Fourth Amendment the government will nevertheless gain access to the information by means of subpoena.

Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.