Technological Advancement and the Fourth Amendment: Ferguson on Big Data and Reasonable Suspicion

Via Josh Blackman, I learned of a forthcoming article by Andrew Guthrie Ferguson. The title is, Big Data and Predictive Reasonable Suspicion. Here is the abstract:

The Fourth Amendment requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.

But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics can forecast who will be the likely troublemakers in a community? The rise of big data technology offers a challenge to the traditional paradigm of Fourth Amendment law. Now, with little effort, most unknown suspects can be “known,” as a web of information can identify and provide extensive personal data about a suspect independent of the officer’s observations. New data sources including law enforcement databases, third party information sources (phone records, rental records, GPS data, video surveillance data, etc.), and predictive analytics, combined with biometric or facial recognition software, means that information about that suspect can be known in a few data searches. At some point, the data (independent of the observation) may become sufficiently individualized and predictive to justify the seizure of a suspect. The question this article poses is can a Fourth Amendment stop be predicated on the aggregation of specific, individualized, but otherwise non-criminal factors? 

This article traces the consequences in the shift from a “small data” reasonable suspicion doctrine, focused on specific, observable actions of unknown suspects, to the “big data” reality of an interconnected information rich world of known suspects. With more targeted information, police officers on the streets will have a stronger predictive sense about the likelihood that they are observing criminal activity. This evolution, however, only hints at the promise of big data policing. The next phase will be using existing predictive analytics to target suspects without any actual observation of criminal activity, merely relying on the accumulation of various data points. Unknown suspects will become known, not because of who they are but because of the data they left behind. Using pattern matching techniques through networked databases, individuals will be targeted out of the vast flow of informational data. This new reality subverts reasonable suspicion from being a source of protection against unreasonable stops, to a means of justifying those same stops.

This article provides one example of how changing technology stands to fundamentally change the impact of various Fourth Amendment doctrinal rules. Another example is the third party doctrine, which holds that voluntary disclosure of information to third parties removes a reasonable expectation of privacy in that information. With the vast amount of information now being shared through telephone companies and internet providers, some critics (and even one district court) are now calling for a rethinking of this doctrine.

One more example of a Fourth Amendment rule that may end up needing to be changed is the rule stated by the Court in Kyllo v. United States -- there the Court struck down the warrantless use of an infrared imaging device, holding that a Fourth Amendment search takes place when the police use a device that reveals information about the interior of the home, when that device is not in common use. Commentators question whether Kyllo remains good law in light of the growing availability of thermal imaging devices to the general public.

All of these examples are instances where Fourth Amendment rules no longer provide the level of privacy that they did at the time they were formulated. If that same level of privacy is to be protected, courts will either need to significantly revise Fourth Amendment doctrine, or legislatures will need to place limits on the government's use of new technology.

Class Action Lawsuit Against Mt. Gox Likely

News in the world of bitcoins has been dominated by the collapse of Mt. Gox, the world's largest bitcoin exchange. Investors' bitcoins that were stored with Mt. Gox were apparently stolen by hackers, resulting in the loss of $460 million. Wired has a thorough account of the hack, and the events leading up to the collapse.

Like many hacks on bitcoin exchanges, this story has drawn the attention of news outlets across the world, and has prompted some bitcoin critics to announce the death of the currency. Bitcoin enthusiasts are quick to respond that the currency is resilient and will survive this crisis. I am inclined to agree with this view, since bitcoins have survived previous hacks of exchanges, and attempts by governments to restrict the currency.

But Mt. Gox's collapse and bankruptcy is an event worth noting and continuing to follow, especially in light of the potential for lawsuits against the exchange. The Telegraph reports that hundreds of Mt. Gox customers are seeking to launch a class action lawsuit against the exchange. And the New York Times reports on the difficulty of embarking on such a lawsuit, given the immaterial and evasive nature of bitcoins as assets.

The collapse of Mt. Gox will almost certainly lead to litigation. It will be interesting to see how this litigation proceeds, and whether the plaintiffs have any success in recovering their assets.

A Familiar-Looking, Proposed Drone Restriction in Massachusetts

The Associated Press reports that a bill to limit the use of drones is scheduled for a hearing in the Massachusetts Senate Transportation Committee. Nashoba Publishing has more details on the bill here. The bill would restrict the use of drones by law enforcement to situations where officers obtain a warrant, or when there is an emergency. The bill would also ban the use of weaponized drones. Beyond the ban on weaponized drones, there appears to be no limit on the use of drones by non-government parties.

The full text of the bill is available here.

After looking over the bill, I notice that it is very similar to Rhode Island's proposed bill to limit the use of drones by law enforcement. I blogged about the Rhode Island legislation here.

The similarity between these two bills can probably be explained by looking to a supporter that both bills have in common: the ACLU. Here, the ACLU of Rhode Island announces that it is supporting H7170, the bill that I blogged about earlier. And here, the ACLU announces that it is supporting S1664, the Massachusetts bill that would limit law enforcement's use of drones. The ACLU is also supporting H1357 in Massachusetts, which seems to be the same as S1664.

Since the Massachusetts bill is extremely similar to the Rhode Island bill, I will not repeat my earlier evaluations of the Rhode Island bill, which you can read here. I will only add that the ACLU seems to be doing an effective job of trying to limit government use of drones, but private use of drones is something that state legislatures will need to address as drones become more available to private parties.

Massachusetts and Rhode Island focus on government drones, but legislatures in these states must not forget that private parties can violate privacy rights too.

Rhode Island's Proposed Drone Law

Boston.com reports on a recent bill proposed in Rhode Island's House of Representatives:

The bill from Democratic state Rep. Teresa Tanzi would require law enforcement agencies to hold public hearings before acquiring a drone aircraft. The agency would need the approval of local leaders, or, in the case of a state agency, the governor. 

Finally, the agency would have to consult with the state attorney general and get court approval before using the drone in specific investigations. Drones would also be prohibited from carrying weapons.

The full text of the bill is available here.

The bill focuses on law enforcement use of drones, and there are very few sections of the bill that seem to apply to private parties. One exception might be 12-5.3-2 (d) which broadly bans the use of weaponized drones.

The bill's restriction on law enforcement's use of drones is a bit restrictive, but seems pretty good overall. The bill would require officers to seek a warrant before using drones, although there are some exceptions to this requirement in emergency situations. The bill would also require prompt deletion of information collected on people who are not the subject of warrants, although I did not see any provision that would govern the retention or deletion of information on individuals who are the subjects of properly-obtained warrants.

One notable part of this bill is 12-5.3-2 (b) which would require a public hearing before a government could obtain a drone. The governor would need to approve the acquisition of a drone for a state agency, while the town or city councils that oversee municipal authorities would need to approve those authorities' acquisition of drones. Different towns may have vastly different opinions on the use of drones, with some towns (like Iowa City) favoring even more stringent restrictions on police use of drone technology. Rhode Island's requirement that a municipalities approve local drone acquisition gives local governments a greater say when it comes to police use of drone technology.

No vote has yet been scheduled on this bill, and as far as I can tell, the bill remains in the House Committee on Judiciary.

The Inconsistent Enforcement of the Migratory Bird Treaty Act

At Energy an the Law, Charles Sartain has an interesting post on the mixed enforcement of the Migratory Bird Treaty Act. He notes that while CITIGO was fined over one million dollars for the death of ten birds in 2012, wind turbine operators now have permits allowing them to kill a certain number of eagles (a reform to the law that followed soon after a notable case where turbine operators were fined for the deaths of golden eagles). And while the deaths and injuries of birds at the hands of wind turbines and solar plants are met with studies, nobody in government has yet said anything about the potential thousands of bats that are killed each year by wind turbines.

Sartain concludes that there is no consistent policy behind current enforcement practices. It will be interesting to see if these practices change as the government's studies on solar and wind energy plants' environmental impacts proceed.

The CATO and P.J. O'Rourke Amicus Brief in Susan B. Anthony List v. Driehaus

Via the Legal Theory Blog, I learned about this excellent amicus brief written by Ilya Shapiro on behalf of the CATO Institute and P.J. O'Rourke for the case, Susan B. Anthony List v. Driehaus. The ScotusBlog page on the case is here.

The brief focuses on the second question before the Court which is:

[W]hether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree.

 Or, as the brief puts it:

Can a state government criminalize political statements that are less than 100% truthful?

Ohio's law bans knowing statements of falsehood (or statements made with reckless disregard for their possible falsehood) that are intended to influence the outcome of an election. The CATO brief argues that this law violates the First Amendment and that the Court should "terminate it with extreme prejudice." By banning false statements in political contests, Ohio limits political discourse, which the brief argues is a loss for society:

After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we'd be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ Incorporated the Nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn't administered quickly enough to secular-humanist professors of Chicano studies.

There are a lot of other good lines in the brief, so I recommend that you read the whole thing.

Louisiana's Proposed Drone Regulations

SFGate reports:

Louisiana should have limits on the use of unmanned aircraft, so people can't spy on their neighbors and government can't snoop in people's backyards without cause, said a state senator proposing restrictions on drones.

. . .

[State Senator, Dan] Claitor's proposal would prohibit the use of a pilotless aircraft to conduct surveillance on a person or private property and to possess or distribute an image captured through such surveillance. That includes photos, sounds or other information recorded by a drone.

The measure includes 16 exceptions, including for the military, mapping purposes and maintenance of utility services. Law enforcement agencies could use drones if they have a search warrant, are documenting a crime scene, searching for a missing person or responding to a hazardous materials spill.

SB 330 is the main bill that includes the restrictions and exceptions. The full text of the bill is available here. A more limited bill has also been proposed that will prohibit drones from flying over water plants and other critical infrastructure. That other bill can be found here.

SB 330 is the more interesting bill of the two, and in general I think it is pretty good. While the bill's ban is pretty broad, this bill is notable for its numerous exceptions to the broad ban. While the bill prohibits the use of drone-collected images by the government in trials, the bill allows law enforcement officers to collect images with drones if they have a warrant. But even if the officers do not have a warrant, the police can collect images with drones if there is a hot pursuit situation, or if the police are surveying the scene of a recent accident. Moreover, people can collect information from drones that are hovering eight feet off the ground in public places and are using no image-enhancing devices.

Moreover, while SB 330's overall ban is broad, it is nevertheless qualified in a way that avoids over-restriction of typical drone activity. The bill prohibits the collection of an image of an individual or real property, but only if that image is collected "with the intent to conduct surveillance on the individual or property captured in the image." So even if somebody is flying a drone with a camera that happens to capture the images of individuals or property, there will be no violation of the statute if that person was not specifically intending to conduct surveillance on those individuals or that property. Admittedly, "surveillance" remains undefined, so the scope of the bill is still a bit indeterminate, but the specific intent component certainly seems to be a step in the right direction.

SB 330 may seem cumbersome at first. It is pretty lengthy due to its list of exceptions to its overall ban. But bans that are short and simple tend to either restrict too much drone activity, or too little. This bill strikes a pretty good balance between protecting people's privacy and allowing for the use of drones by private parties and law enforcement.