Sunday, February 15, 2015

Behavioral Recognition and the Fourth Amendment

We are accustomed, or desensitized, to closed circuit cameras (CCTC) in public places. Courthouses, stores, parking lots. We assume that, generally, these are used for security purposes. But that routine surveillance is expanding as it becomes more technologically advanced and financially accessible to law enforcement.

Law enforcement has now coupled CCTC  with behavioral recognition programs to monitor and analyze public behavior. That is, in combination, a computer algorithm may detect suspicious conduct by individuals (whatever that means). Instead of mere facial recognition, which requires some proximity, this behavioral recognition can, supposedly, identify certain behavior that is consistent with criminality.

Justified by law enforcement as a public safety measure, it poses an affront to the Fourth Amendment. Watching human behavior from afar, then alerting police to suspicious behavior that merits further investigation, such as a Terry stop, is a new frontier. Only within the last few years has the Supreme Court warily edged up to such established, ubiquitous technology as smart phones and GPS. Behavioral analytics falls squarely within the mosaic theory -- an aggregation of widely-collected data that crosses with the Fourth Amendment. Justice Sotomayor registered her concerns about the increasing intrusion in her concurrence in Jones. She warned that  GPS "monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." Behavioral recognition theory threatens a similar intrusion, but on a much grander scale.

The NYT describes Chicago's new 'smart' surveillance"Sophisticated new computer programs will immediately alert the police whenever anyone viewed by any of the cameras placed at buildings and other structures considered terrorist targets wanders aimlessly in circles, lingers outside a public building, pulls a car onto the shoulder of a highway, or leaves a package and walks away from it. Images of those people will be highlighted in color at the city's central monitoring station, allowing dispatchers to send police officers to the scene immediately." The obvious concern is, like other programs designed to detect terrorist activities, this will extend to any suspected criminal movement.

Behavioral Recognition: Computer Algorithms Alerting Law Enforcement to Suspicious Activity,15 U.Pitt.J.Tech. L.&Pol'y 101, by J. Darwin King, is a short but good overview of the behavioral recognition technology and the history of SCOTUS's glacier-paced approach to technological changes in context of the Fourth Amendment.

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