The Katz Supervision of Artificial Intelligence Policing: a Prospective Analysis on Controlling Ai Privacy Invasions

• Jurisdiction: United States,Federal
• Publication year: 2020
• Citation: Vol. 3 No. 3

Jiabo Liu^*

The purpose of this article is to propose a prospective study of American police's artificial intelligence ("AI") privacy invasions under the jurisprudence of Katz v. United States. Although the fear of the American police's AI privacy invasions may be overstressed, the destructive effects of AI policing is expectable. To cope with the anticipated destructive effects, this article, employing Katz as a common law basis, directs a prospective analysis on restraining and regulating American police's AI surveillance as a potential "search" under a Schumpeterian-Beckerian pragmatic model.

The purpose of this article is to propose a prospective study of American police's artificial intelligence ("AI") privacy invasions under the jurisprudence of Katz v. United States (1967). In recent years, the fear of privacy invasion and other interruptive features under artificial intelligence seems massive.¹ It is plausible but is also overstressed. Overall, human intelligence still exceeds artificial intelligence at the present time.² However, the predictive power of AI can cause countless risks in general³ and in particular it could become a disruptive law enforcement force provoking massive privacy invasions.⁴ Employing Katz v. United States, the U.S. Supreme Court's landmark decision for reinforcing the Fourth Amendment,⁵ as a common law basis, this article directs a prospective analysis on restraining and regulating American police's AI surveillance as a potential "search"⁶ under a Schumpeterian-Beckerian pragmatic model of analogical reasoning.⁷

Katz v. United States is a victory of pragmatism⁸ in applying the Fourth Amendment. The Fourth Amendment institutes a judicial supervision over the government's (mainly the police's) unreasonable invasion ("search" or "seizure") into people's privacy rights on their persons and/or properties through the required "reasonableness" of "search" or "seizure" under the safeguard of "probable cause" and specific "warrant."⁹ To preserve the Fourth Amendment rights, in the early 20th century, the U.S. Supreme Court adopted the Exclusionary Rule that makes the evidences gained by "unreasonable" "search" or "seizure" inadmissible at trial. In 1961, in Mapp v. Ohio, the Supreme Court extended the Exclusionary Rule to all courts of the land.¹⁰ This extension is a consolidation of the judicial supervision over the police's operations under the Fourth Amendment. Six years later, in 1967, the Supreme Court pragmatically transposed the scope of the Fourth Amendment by reasoning the "reasonable expectation of privacy" as the core of the Fourth Amendment applications in Katz.¹¹ According to the Fourth Amendment and the Court's decision in Katz, to conduct "search" or "seizure" whenever "reasonable expectation of privacy" is present, the police must establish "probable cause" of reasonableness in order to secure the courts' specific "warrant," no matter in public or private spaces, for tangible or intangible privacies, and with advancing technology or not. As a decision strengthening the judicial supervision over the police's invasive operations through reviewing the privacy sensitivities of the then advanced technology, Katz provides a jurisprudential basis for containing the legal risks from new performance-enhancing technology such as AI surveillance as a potential "search" under the Fourth Amendment.

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In the United States, the police have applied AI in their operations for decades.¹² As AI become more advanced and provocative, more and more police agencies would apply this advanced and provocative technology for surveillance.¹³ In consequence, this performance-enhancing but privacy-destructing technology would maximize public spaces and minimize private spaces in immeasurable ways when operating AI surveillance as a potential "search." As expected, with assistance of AI, the police would pose conceivable but invisible privacy invasions violating the Fourth Amendment in general and the principles of Katz in particular in unexpected fashions.¹⁴ Nevertheless, we can seldom find an essential analysis on minimizing the privacy invasion risk of AI "search" under Katz. Under a Schumpeterian-Beckerian pragmatic model of analogical reasoning, this article proposes a prospective analysis on this issue.

This article consists of five parts. After this first part, the second part will review the Schumpeterian-Beckerian perspective on coping with the privacy invasion risk of AI "search" under Katz. The third part will address some methodological concerns on the privacy invasion risk of AI "search" under the Schumpeterian-Beckerian pragmatic model. The fourth part will analyze the risk structures of AI surveillance under the model. On account of the analysis, some initiating legal advice will be offered. Finally, the article will present some conclusive remarks.

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Schumpeterian-Beckerian Perspective Under Katz v. United States

Without doubt, as many observers recognized, the disruptive nature of AI technologies as forces of creative destruction¹⁵ can bring about complex uncertainties¹⁶ and "are eroding our trust in government."¹⁷ However, according to Schumpeter, the "Prophet of Innovation"¹⁸ who originated the legendary notion of "creative destruction," "creative destruction" as a long-run innovation-driven process can engender both crises and opportunities in a recurrent path.¹⁹ While expounding the dynamic process of creative destruction, Schumpeter emphasized the another creative aspect of this process—entrepreneurs' "creative response" to the economic dynamics through renovating new opportunities and redefining existing socio-economic environments.²⁰

In general, Schumpeter's words are still referential for understanding the complex functions of AI technologies in the socio-legal-economic processes. According to Schumpeter, law is a castle of property rights. Taking patent law as an example, Schumpeter believes that law is a pragmatic fort for withstanding the wave of economic development as a process of creative destruction.²¹ Thus, in Schumpeter's terms, law should be pondered as a responsive castle for minimizing the risks of complexities in the process of creative destruction. Meanwhile, Schumpeter defined the practice of democracy as a political process of pragmatic competitions.²² By the same token, in a Schumpeterian system, the "rule of law" as "democracy" can also be identified as a process of pragmatic competitions.²³ In this process, the competitions for institutional goals among the government agencies in a pragmatic way under the "rule of law" could lead to the optimization of people's welfare.

In particular, the courts' supervision over the police is a special responsive castle for minimizing the risks of the police's infringements in order to achieve the optimization of people's legal rights in a process of pragmatic competitions. When facing the potential privacy-destructing impact of AI policing, a Schumpeterian model can pose the ruling in Katz as a judicial "creative response" to the then new technological frontier in the legal process of the Fourth Amendment.²⁴ As a triumph of pragmatism,²⁵ Katz was indeed a starting point for reaching the Fourth Amendment latitude to the new technological frontiers. Since then, the U.S. Supreme Court has addressed the Fourth Amendment issues to diverse new technologies in a series of rulings.²⁶ In this regard, Katz was "a watershed decision in Fourth Amendment law"²⁷ and "was the genesis of contemporary thought on the Fourth Amendment protections for the seizure of electronic communications."²⁸ A Schumpeterian pragmatist would not worry about the privacy-centered purpose of Katz as other commentaries care about.²⁹ Instead, a concentration on privacy reasoning can serve as an effectual instrument for balancing private right and public power in "search" or "seizure" via a plain reasonableness test. Under a Schumpeterian model, Katz is pragmatic rational decision with task-centered plainness and cost-saving instrumentality for optimizing the Fourth Amendment welfare under the pressures of AI creative destruction.

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Schumpeter's perspective on converging political/legal process with economic process pioneered public choice theory and neoin-stitutionalist economics.³⁰ Becker (recipient of the 1992 Nobel Prize in Economics), inspired by Schumpeter, explored the optimal conditions of legal process.³¹ Liu analyzed the role of British law in the growing process of UK copyright industries under a Schumpeterian model.³² To analyze the role of Katz as a judicial "creative response" to the prospective risks of the police's AI privacy destruction, this article incorporates Becker's optimal outlook of legal process into the Schumpeterian process of pragmatic institutional competitions and construct a Schumpeterian-Beckerian pragmatic model as an analytic framework. Under this model, the legal process of Katz is considered as a process of privacy optimization. In this optimization process, AI surveillance as a potential "search" is a force of creative destruction and can disturb the achievement of privacy optimization. Applying Katz as a judicial "creative response" to the force of "creative destruction" in the legal process shall be pragmatic for curbing AI surveillance and for promoting privacy optimization.

This Schumpeterian-Beckerian pragmatic model can capture the time paths of the "responsive" effect of Katz applications (encompassing a series of relevant case laws based on analogical reasoning) and the "destructive" effect of AI applications.

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Accordingly, the model can provide a framework for inquiring into the disruptive uncertainties of AI technologies as forces of creative destruction and corresponding legal response. Under this model, it is assumed that the AI applications in police agencies and Katz determine the privacy optimization at a time path of the legal process in a geographic area. The...