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

The United States Government is currently developing a system that can read minds-a situation that George Orwell envisioned when he wrote Nineteen Eighty-Four. The Future Attribute Screening Technology ("FAST"), currently being tested by the U.S. Department of Homeland Security (DHS), employs a variety of sensor suites to scan a person's vital signs, and based on those readings, to determine whether the scanned person has "malintent"-the intent to commit a crime.

FAST is currently designed for deployment at airports, where heightened security threats justify warrantless searches under the administrative search exception to the Fourth Amendment. FAST scans, however, exceed the scope of the administrative search exception. Under this exception, the courts would employ a balancing test, weighing the governmental need for the search versus the invasion of personal privacy of the search, to determine whether FAST scans violate the Fourth Amendment. Although the government has an acute interest in protecting the nation's air transportation system against terrorism, FAST is not narrowly tailored to that interest because it cannot detect the presence or absence of weapons but instead detects merely a person's frame of mind. Further, the system is capable of detecting an enormous amount of the scannee's highly sensitive personal medical information, ranging from detection of arrhythmias and cardiovascular disease, to asthma and respiratory failures, physiological abnormalities, psychiatric conditions, or even a woman's stage in her ovulation cycle. This personal information warrants heightened protection under the Fourth Amendment. Rather than target all persons who fly on commercial airplanes, the Department of Homeland Security should limit the use of FAST to where it has credible intelligence that a terrorist act may occur and should place those people scanned on prior notice that they will be scanned using FAST.

Finally, if the Department of Homeland Security deploys FAST in a Minority Report-like approach by using it to detect a person's intent to commit ordinary crimes-such as murder, theft, or drug smuggling-FAST does not fall under the administrative search requirement and must meet the Fourth Amendment's warrant requirement or another exception to the warrant requirement.

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. …

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