The movie Minority Report is nominally a science fiction story about “precogs,” human psychics who assist police to stop crimes before they happen. In one scene, the film shows “precrime” cops arresting a man before he actually harms his spouse. Although I was barely out of college and several years from law school when I first saw it, at the time, I couldn’t help but wonder, “Is that arrest Constitutional?” More recently, I’ve been wondering the same thing about how law enforcement may start to use artificial intelligence. Although researchers are exploring using AI algorithms to predict the future in controlled settings,1 no one is suggesting Minority Report style future crime reports. Rather, I wonder how law enforcement and courts will apply the Fourth Amendment to AI when AI programs and AI-enabled devices are searched. Many forms of AI rely on extensive personal data and on tracking our preferences and actions. Depending on how courts and law enforcement apply the Fourth Amendment’s search and seizure requirements, it could become very easy to gain access to that data and analysis. To properly address AI, courts will need to expand societal expectations of privacy and areas where warrants are required before searching.
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