Cybersurveillance Intrusions and an Evolving Katz Privacy Test

Authors

Margaret Hu, Washington and Lee University School of LawFollow

Document Type

Article

Publication Title

American Criminal Law Review

Publication Date

2018

Abstract

To contextualize why a new approach to the Fourth Amendment is essential, this Article describes two emerging cybersurveillance tools. The first Cybersurveillance tool, Geofeedia, has been deployed by state and local law enforcement. Geofeedia uses a process known as "geofencing" to draw a virtual barrier around a particular geographic region, and then identifies and tracks public social media posts within that region for predictive policing purposes. The second tool, Future Attribute Screening Technology (FAST), is under development by the United States Department of Homeland Security (DHS). FAST is another predictive policing tool that analyzes physiological and behavioral signals with the goal of identifying "malintent": an individual's predilection for disruptive or violent behavior. Both Geofeedia and FAST seem to fall outside the scope of protections afforded by existing Fourth Amendment jurisprudence.

Recommended Citation

Margaret Hu, Cybersurveillance Intrusions and an Evolving Katz Privacy Test, 55 Am. Crim. L. Rev. 127 (2018).