Academic journal article American University Law Review

A Slow March towards Thought Crime: How the Department of Homeland Security's Fast Program Violates the Fourth Amendment

Academic journal article American University Law Review

A Slow March towards Thought Crime: How the Department of Homeland Security's Fast Program Violates the Fourth Amendment

Article excerpt

It was terribly dangerous to let your thoughts wander when you were in any public place or within range of a telescreen. The smallest thing could give you away. A nervous tic, an unconscious look of anxiety, a habit of muttering to yourself-anything that carried with it the suggestion of abnormality, of having something to hide. . . . Your worst enemy, he reflected, was your nervous system. At any moment the tension inside you was liable to translate itself into some visible symptom.

- George Orwell, Nineteen Eighty-Four1

INTRODUCTION

On April 15, 2013, three people died and hundreds were wounded when two homemade pressure cooker bombs exploded near the finish line of the Boston Marathon.2 Employing images taken from security cameras, the Federal Bureau of Investigation identified two men as persons of interest and possible suspects because their images appeared near the blast zones moments before the bombs went off.3 Prior to the explosions, no one suspected that Tamerlan and Dzhokhar Tsarnaev were about to detonate two improvised explosive devices in the crowded area around the finish line of the Boston Marathon.4 However, over the next few years, the Department of Homeland Security (DHS) is hoping to deploy a system in America that would be able to detect the signs of agitation that precede such criminal acts-crime detection before the crime is even committed.5 The system-Future Attribute Screening Technology ("FAST")-can remotely read a person's vital signs and then predict whether that person has the indicators of "malintent," the intention to commit a crime.6

FAST implicates the Fourth Amendment's prohibition against unreasonable searches because it would allow the government to obtain vast quantities of sensitive medical data from the people scanned. This Comment argues that the Fourth Amendment prohibits DHS from using FAST scans to detect ordinary crimes without first securing a warrant based on probable cause. It further argues that the use of FAST-in its current form without limitation- to detect terrorism at airports and high-profile venues is an unreasonable administrative search in violation of the Fourth Amendment. These scans are not minimally intrusive because they can obtain highly sensitive medical data, and the scans are not narrowly tailored to detect weapons or explosives because they are designed to detect a frame of mind.

Part I of this Comment describes the FAST system and its functions. Part II discusses the applicable Fourth Amendment framework and the requirements for a reasonable administrative search, while Part III describes a person's privacy interest in medical data as implicated by FAST's conceivable ability to uncover medical, psychiatric, and other conditions through the scans. Part IV then demonstrates that a FAST scan is a Fourth Amendment search but that it meets the criteria to be analyzed under the administrative search exception to the warrant requirement. This Part further analyzes the reasonableness of FAST scans under administrative search jurisprudence and ultimately concludes that FAST scans are not reasonable under the administrative search exception to the Fourth Amendment and are therefore invalid. Specifically, FAST is too intrusive due to its potential to reveal sensitive medical data, and that its intrusiveness is not outweighed by the governmental interest in preventing terrorist acts because FAST scans are not narrowly tailored to further that governmental interest.

I. BACKGROUND ON THE FUTURE ATTRIBUTE SCREENING TECHNOLOGY

A. How FAST Works

The FAST system is grounded in research on human behavior and psychophysiology, relying on the theory that the body's autonomic nervous system reacts in certain ways and that, when those reactions are detected, the system can reveal a person's intentions.7 The theory is based on an evolution of the polygraph: scientists have long known that changes in heart rate, blood pressure, and galvanic skin response are indicators that a person is lying. …

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