Big Brother and His Magic 8-Ball: A Legal Analysis of the Applications of Data Assisted Predictive Policing

Abstract

This paper investigates the relationship between predictive policing methods or so called “pre-crime,” and Fourth Amendment protections. In the body of sociological research, the study of state observation and carceral power has been at the forefront of the field for the last several decades. Starting with Foucault and the resurgence of the panopticon, surveillance studies have sought to describe the relationship of the individual to power. The rapid advent of the internet over the last several decades has allowed for new and innovative surveillance methods to proliferate. Instead of the traditional closed-circuit-television (CCTV), internet service providers (ISPs), social media companies, and web browsers collect their user’s data to create huge data sets curated by artificial intelligence. These so called “Big Data” sets are used by police to create predictive models for policing. These surveillance methods consist predominately of two modes, either predicting areas likely to play host to crime or predicting which individuals will likely commit crimes. For an emergent branch of sociological research, there is already a robust body of literature representing research conducted into the efficacy of such surveillance models; however, much of this research leaves out a critical component of criminal justice. That is the law. Instead of simply critiquing predictive policing, this paper sets out to demonstrate that the use of predictive policing methods is often a violation of protections around the Fourth Amendment. To do this, I use approximately the last 80 years of Fourth Amendment law to construct a framework to analyze the Constitutionality of the two primary forms of predictive policing methods. Many municipalities are beginning to move towards predictive methods, and this paper can serve as a cautionary guide to avoid the implementation of unconstitutional policing practices.