Thursday, February 17, 2011

What Does Watson's Jeopardy Victory Say About the Fourth Amendment?

What does Watson’s Jeopardy victory mean for the Fourth Amendment?  Perhaps a lot.
Watson won because it was able to quickly and efficiently sort through information to find patterns and associations.  The computer is apparently able to understand words and phrases in context.  Here is the desription from a CNET contributor:
From a storage perspective, much is being made of the massively huge volumes of data Watson feeds on and his ability to calculate the probability of a "right" answer from a list of several potential winners in about three seconds or less. Watson's ability to parse big data combinations and permutations in real time leads to IBM's planned extension of Watson's underlying technology into big data analytics.
This technology will be very useful to government investigations.  For example, in looking at the use of GOPS devices and searches of cell phones, the government already is able to use an aggregation of otherwise legal techniques to infringe on reasonable expectations of privacy.  Significantly, this government interference with privacy occurs without invading physical invasion property.  In all cases since Katz, the Court has not closely examined the means by which the government obtained the content of the target‘s personal information, just whether the information was obtained.  Even when looking at infrared detectors aimed at homes, the key analysis is that the privacy of the home was invaded, not the use of the technology.
In the present and future, courts will be confronted not by discrete uses GPS tracking devices, or a simple search of the contents of a cell phone.  Instead, courts will confront sustained and long-term surveillance efforts by the government of targeted individuals.  This surveillance will be designed to detect patterns of behavior.  And it will also allow police to determine the political views, medical problems, social history, and other intimate information about people just from looking at where they go and who they communicate with.  A simple example:  knowing that a person is on the same corner as a psychiatrist office on Tuesday at 3:00 is not significant; knowing that the person is there every Tuesday at 3:00 is significant. 
My views on GPS tracking can be found elsewhere on this blog and in an upcoming article here.  My views on cell phone searches can be found in an upcoming article here.
Watson-type technology will allow even greater government analysis of data the government believes it can legally obtain.  The technology can be used to detect patterns in the travel of multiple individuals, or perhaps to infer political views from simply who is e-mails and texting who.  That is not a reason for fear.  Rather, the recognition of this fact simply must inform future court decisions about the scope of Fourth Amendment protections.

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