“These protections require, at a minimum, a neutral arbiter – a magistrate – standing between the government's endless desire for information and the citizens' desires for privacy.”  In September, Lynn Adelman, a federal judge in Wisconsin, helped shore up the Fourth Amendment against the Digital Age’s all-out assault on privacy. As we’ve written so often on this site, algorithms and artificial intelligence are existential threats to constitutional rights like search warrants and probable cause. The digital world seeks to automate the process of justice. It is amoral in the name of efficiency, with automated justice tantamount to automated sentencing. The good news is that the “smartest” algorithms, the most “fine-tuned” large language models can still be stopped by a public official who sticks to a solemn oath to uphold the Constitution. This reminds us that true justice will always require a human in the loop. Which is exactly what defendant Peter Braun did not have when Google and Microsoft sent automated alerts – based on “hash value” data patterns alone – to a national clearinghouse. A Wisconsin special agent, alerted by these hash values, then conducted his own investigation into the flagged files and took a peek before deciding to get a search warrant. A warrant obtained after an examination turned up incriminating evidence of child sex abuse material in Braun’s home. Braun subsequently sued to have that evidence suppressed on the basis that its acquisition violated his Fourth Amendment protections. Judge Adelman agreed. An investigator is paid to be suspicious. But no investigator should be able to explore hunches without a warrant. The investigator’s hunches in this case were based on an interpretation of hash values – which, unlike hash tags that group files for users – are cryptographic functions meant to identify data for computing. Hash values are inherently prone to misinterpretation of contents. If the authorities’ motives are well intentioned – and we believe they were in this case – the rule of law still requires that a court must first review the evidence and agree before an investigator can look at a file. We condemn anyone involved in the possession of material that is, and must be, inherently criminal. But that is no reason throw out due process and the Fourth Amendment. Ante omnia hoc, meaning “before all things, this”: The Constitution could not be clearer – GET A WARRANT. Did the Wisconsin authorities have probable cause in Braun’s case? They might have, but in the eyes of the Fourth Amendment they forfeited any such claim because they could not be bothered to go to a magistrate and present their case. That is why Judge Adelman had no choice but to suppress the illicitly obtained evidence. “It would have been easy for [agent] Koehler to obtain a warrant before viewing the images,” wrote Adelman in his opinion, “but he decided not to do so.” Illegally obtained evidence isn’t evidence at all. We all want the authorities to protect children to the maximum extent under the law. But even Peter Braun has rights – and his rights are our rights. Do we really want the authorities searching our digital lives without a warrant in hand, simply because some unthinking, blunt-force algorithms decided that something seemed suspicious? Judge Adelman also ruled on the basis that reliance on hash values can target many images that are deeply private, but perfectly legal. He wrote: “Here the government omitted any discussion as to the reliability of hash matching in the warrant affidavit, a fatal flaw which undermines the existence of probable cause.” Justice Amy Coney Barrett calls the Fourth Amendment a “principle” of the rule of law. That principle was ratified in 1791 – by humans, for humans, with nary a bit, byte, algorithm, or special agent in sight. Convenience and expediency were never the point of the Fourth. In fact, they were seen as antithetical to the deliberate – and difficult – ruminations justice requires. That the Digital Age is blindly premised upon such efficiencies should give us all pause. Comments are closed.
|
Categories
All
|
RSS Feed