Babak Siavoshy, Fourth Amendment Regulation of Information Processing

By privacylaw | May 28, 2013 at 06:10 pm

Comment by: Stephen Henderson

PLSC 2013

Workshop draft abstract:

When (if ever) should the processing, analysis, or manipulation of evidence—rather than its mere collection—by the government trigger the Fourth Amendment? This essay addresses some of the difficult line-drawing problems that arise from this question.

The Fourth Amendment protects the people from unreasonable government searches and seizures of persons, houses, papers, and effects. Increasingly, however, government entities gather information not by rummaging through peoples’ things, but rather by using technology to process, analyze, or manipulate evidence or information that is already in the government’s hands or otherwise exposed. For instance, the government may uncover information about a person by analyzing DNA he “abandoned” on the sidewalk or a discarded coffee cup; it might learn what happens in his house by processing the heat signatures emanating from its walls; or it might learn his habits by stringing together the pattern of his “public” movement using thousands of data points from cameras, government weather satellites, or automatic license plate readers. In each of these cases, the physical form of what is collected—DNA, heat, or visual information exposed to the public—is either exposed or already in the government’s hands. It is the government’s use of technology to process, analyze, and enhance what is collected that makes the evidence useful, and that raises potential privacy concerns.

One response to these developments—perhaps representing the conventional wisdom—is that there are few, if any, constitutional limits on the government’s ability to manipulate evidence it could otherwise legally obtain. Advocates of this position correctly note that judicially imposed limitations on information processing create difficult line drawing problems (how do we distinguish between acceptable information processing and unacceptable information processing?) and risk tying the hands of law enforcement by arbitrarily restricting the use of technology in investigations. Accordingly, the conventional wisdom makes a strong argument that the government’s use of technology to manipulate, process, or analyze evidence—where there is no obvious collection problem—does not and should not trigger the Fourth Amendment.

This essay argues that the conventional wisdom on information processing under the Fourth Amendment is both misplaced and overstated. It is misplaced because it adopts a wooden construction and application of the Fourth Amendment (an otherwise flexible provision) and one that risks significantly undermining the Amendment’s effectiveness and purpose, particularly in light of advancements in technology that allow the government to get the information it wants without engaging in conduct that looks like a Fourth Amendment search or seizure. The conventional wisdom on information processing is also overstated, because it assumes that courts have hereto been unwilling to impose constitutional limitations on information processing conduct by the government. In fact, information the issue is not new to the courts. The judges and justices who shape Fourth Amendment law have grappled with what is essentially technologically-enhanced information processing conduct in cases as varied as Kyllo v. United States, Skinner v. Railway Executives Labor Association, Walter v. United States, United States v. Jones, and even Katz v. United States. An overview of these and other cases suggests, first, that courts are willing to impose Fourth Amendment limitations on some information-processing conduct—or at the very least, that courts acknowledge that such conduct raises a Fourth Amendment question. Second, it suggests a number of different solutions to the legitimate line drawing and other concerns raised by advocates of the view that information processing should not, by itself, trigger the Fourth Amendment. While there are no perfect solutions, the essay suggest a theoretical framework and a path forward for evaluating the Fourth Amendment implications of the increasing use of technologically-enhanced information processing by the government.

Laura K. Donohue, Remote Biometric Identification

By privacylaw | May 23, 2013 at 07:35 pm

Laura K. Donohue, Remote Biometric Identification

Comment by: Babak Siavoshy

PLSC 2012

Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2137838

Workshop draft abstract:

Facial Recognition Technology represents the first of a series of next generation biometrics, such as hand geometry, iris, vascular patterns, hormones, and gait, which, when paired with surveillance of public space, give rise to unique and novel questions of law and policy. Together, these technologies constitute what can be considered Remote Biometric Identification (RBI). That is, they give the government the ability to ascertain identity (1) in public space, (2) absent notice and consent, and (3) in a continuous and on-going manner. RBI fundamentally differs from what can be considered Immediate Biometric Identification (IBI)—or the use of biometrics to determine identity at the point of arrest, following conviction, or in conjunction with access to secure facilities. Use of the technology in this way is (1) individual-specific, (2) involves notice and often consent, (3) is a one-time occurrence, and (4) takes place in relation either to custodial detention or in the context of a specific physical area related to government activity. Fingerprint is the most obvious example of IBI, although more recent forays into palm prints fall within this class. DNA technologies also can be considered as part of IBI. The types of legal and policy questions raised by RBI differ from those accompanying IBI, and they give rise to serious constitutional concerns.

Part II of the Article details the recent explosion of federal initiative in this area. Part III considers the federal statutory frameworks that potentially apply to the current systems: government acquisition of individually-identifiable data, foreign intelligence surveillance, and criminal law legislative warrant requirements. It posits that the federal agencies involved have considerable, largely unchallenged authority to collect and analyze personally-identifiable information. Congressional restrictions on the exercise of such authorities generally don’t apply to biometric systems. Gaps in the 1974 Privacy Act and its amendments and the 1990 Computer Act, in conjunction with exemptions contained in the Privacy Act and the 2002 E-government Act minimize the extent to which such instruments can be brought to bear. The 1978 Foreign Intelligence Surveillance Act and its later amendments, similarly stops short of considered treatment of biometric technologies, generating serious questions about how and to what extent the provisions contained in the statute apply. Title III of the 1968 Omnibus Crime Control and Safe Streets Act and Title I of the 1986 Electronic Communications Privacy Act do not address facial recognition technology, much less the pairing of this with video surveillance. In the absence of a statutory framework with which to evaluate the current federal initiatives and their potential inclusion of facial recognition and video technologies, we are driven back upon Constitutional considerations. Part IV thus focuses on the Court’s jurisprudence in relation to four areas: the Fourth Amendment’s guarantee to protection against unreasonable search and seizure and the probable cause requirement for the issuance of warrants; the Fifth Amendment’s right against self-incrimination; the First Amendment’s protection of speech, assembly, and religion; and the Fifth and Fourteenth Amendments’ due process protections. Part V concludes the Article by noting the need for Congressional action in this area, as related to biometric technologies generally—as well as facial recognition systems—and contemplating the potential pairing of such technologies with video surveillance. Towards this end, it proposes both amendments to existing measures and the introduction of new restrictions specifically tailored to the biometric realm.

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