Recommended Citation
Mary Fan, Big Data Searches and the Future of Criminal Procedure, 102 Texas L. Rev. 877 (2024), https://digitalcommons.law.uw.edu/faculty-articles/1113
Publication Title
Texas Law Review
Keywords
keyword warrants, geofence warrants, digital probable cause, big data
Document Type
Article
Abstract
This Article proceeds in three parts. Part I illuminates the nostalgic Luddism that influences Fourth Amendment jurisprudence and the challenges posed by evolving technologies to this dominant lens. This Part explains the operation of geofence and keyword warrants and how their power to crack cold cases by unidentified perpetrators both tempt and terrify. The confusion in the courts over the constitutionality of geofence and keyword warrants is emblematic of the larger challenges of the Romantic Luddism in Fourth Amendment originalism that has grown in influence over the decades.
Part II frames and theorizes the concepts of collateral impact and collateral harm to analyze oft-expressed concerns that technological strategies may reveal the data of innocent persons. This Article uses the term collateral impact to refer to how persons who are not the targets of an investigative tactic or who are uninvolved in a crime are affected by the tactic. The collateral impact can entail substantial collateral harm, such as being detained in handcuffs and asked about your immigration status by armed SWAT team members executing a search warrant on a housemate. Collateral harm refers to injuries sustained by persons uninvolved in the crime. Potentially disclosing the presence of an electronic device can entail far less collateral harm compared to other practices repeatedly upheld by the courts, such as detaining all persons onsite during a search warrant execution, or mistakenly searching incorrect persons or homes. This Part illuminates the inequities of technological exceptionalism in overweighing collateral harms of incidental data disclosure compared to the collateral harms that are more likely to impact people with the least resources and power.
Part III frames the concept of digital probable cause to address a major source of confusion in the courts over digital search warrants for unknown and thus unnamed perpetrators. Data-based parameters that give rise to a fair probability that evidence of a crime can be found can support digital probable cause. Parameters could be narrowly drawn geolocation coordinates for geofence warrants or keyword search parameters that only a perpetrator planning or executing the crime might use. This Part draws on analogies from decades of practice and litigation over John Doe warrants, which illustrate how warrants can still be valid even if a perpetrator is unknown if particularity and probable cause arises from other parameters. Finally, this Part offers three principles to protect against abuses of big data search warrants, such as hunting for protesters or abortion seekers.