ed by the Fourth Amendment. For instance, we have no Fourth Amendment
protection over our physical characteristics. We know our hair color, eye color, and other features are there for the
world to see, so we can hardly expect
special protection for this information.
The Supreme Court has said the same
of our movements on the public roads.
In today’s world that legal idea is more
complicated. Sure: a police officer’s
quick glance at your face may not raise
concerns, but what about a hundred officers, or a thousand officers doing the
same? What if those thousand officers
were replaced by cameras equipped with
facial recognition? Then your knowingly
exposed self can be mapped in space
and time: a map that would provide the
government with all kinds of sensitive
information, such as your religious affiliation or your political leanings. Yet,
the conventional view is that no matter
whether the government has taken one
or a thousand snapshots of your face,
you have given up your privacy rights.
Closely related to the idea of voluntarily exposed information is what
is known as the third-party doctrine.
crime is more likely to happen.a We live
immersed in a world of scores and predictions—we should not be surprised
the police do, too.
But when the police turn to artificial intelligence, we have far different
concerns. After all, the police can stop
and question even the unwilling, and
perform searches and seizures that can
begin the criminal process. And in a
democratic society, we expect accountability and oversight over these government actors who have so much power
over our lives. In the 20th century, that
oversight could have been as simple as a
bystander reporting potentially abusive
behavior. Even the resource limitations
of the police themselves once served as
a potent check; it is impossible for most
police departments to conduct around-the-clock surveillance of the population.
Artificial intelligence removes these
checks. Technological tools powerful
enough to gather every bit of available
data around us and to make inferences
about us as a result do what no human
a See https://www.predpol.com/how-predictive-
AI also allows policing to be less vis-
ible. The unrelenting collection of in-
formation is made possible because of
both the digital trails we leave online
and the sensors that capture all our
physical world selves. Neither of these
things requires the presence of the po-
lice. This poses unique challenges for
how we regulate policing.
In criminal investigations, police
must abide by the Fourth Amendment’s prohibition on unreasonable
searches and seizures. The Supreme
Court has adapted its interpretation
of the Fourth Amendment as the world
has changed, but two core concepts
have shown themselves to be particularly ill-equipped to address the transformations in policing.
First, since the 1960s, the Supreme
Court has reiterated that what we knowingly expose to the public is not protect-