2018 2018: Spencer Analyzes the Implications of Predictive Analytics and Surveillance Law

Associate Dean for Academic Affairs Shaun Spencer published an article examining how the use of predictive surveillance to prevent terrorist and criminal activity could shape the development of Fourth Amendment law.

Associate Dean for Academic Affairs Shaun Spencer published an article examining how the use of predictive surveillance to prevent terrorist and criminal activity could shape the development of Fourth Amendment law.

By “predictive surveillance,” Spencer refers to a potential technique in which the government collects data in bulk and then analyzes the data to find patterns indicating terrorist or criminal activity. Existing surveillance law presumes that the government’s first step is to target a specific person. Therefore, the step in evaluating whether surveillance is constitutional is to decide whether the government had sufficient particularized suspicion about the target. Predictive surveillance, however, confounds the existing model because it requires collection of massive amounts of data with no suspicion whatsoever.

Despite that disconnect, judges will face great pressure to twist existing doctrine rather than ban the data collection that the government claims is necessary to fight terrorism or crime. Assuming that courts will be predisposed to find predictive surveillance constitutional, Article explores the various doctrinal approaches that courts could take to approve predictive surveillance and assesses the risk that each approach poses to Fourth Amendment doctrine.

Spencer identifies the technical and political challenges that the government will face implementing predictive surveillance and discusses the reasons to believe that government will overcome these challenges. He then describes why predictive surveillance threatens Fourth Amendment doctrine itself and offers a cautionary tale of how courts evaluating the NSA’s bulk telephone metadata collection program twisted the statutory language to authorize the program. Finally, he examines the different ways that courts could apply the Fourth Amendment's third-party and public-exposure doctrines to predictive surveillance and then assesses how each approach could affect the development of those doctrines.

The article appears in the peer-refereed journal, I/S: A Journal of Law and Policy for the Information Society, published at Ohio State University’s Moritz College of Law.

For a link to audio of Associate Dean Spencer’s presentation of the paper at the Ohio State University Moritz College of Law’s symposium , see: https://moritzlaw.osu.edu/students/groups/is/symposia/predictive-analytics-law-and-policy-mapping-the-terrain/

For a link to the paper itself, see: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3195977