Will Nesbit’s, “A Matter of Time: Artificial Intelligence, the Fourth Amendment, and Changing Privacy Expectations”

Nesbit, W. (2024). “A Matter of Time: Artificial Intelligence, the Fourth Amendment, and Changing Privacy Expectations.” American University Law Review, 73. https://aulawreview.org/blog/a-matter-of-time-artificial-intelligence-the-fourth-amendment-and-changing-privacy-expectations/

The Fourth Amendment was intended to protect the people of the United States from overly intrusive actions. At its core, it protects against unreasonable searches and seizures. However, as investigative tactics have advanced with technology, defining the scope of unreasonable searches and seizures has become increasingly difficult. 

A Matter of Time: Artificial Intelligence, the Fourth Amendment, and Changing Privacy Expectations, by Will Nesbit, published in the American University Law Review, explores the implications of AI in Fourth Amendment standards. Historically, a Fourth Amendment claim hinges on a reasonable expectation of privacy. The Third-Party and Public Access doctrines suggest that when an individual shares information, there is an assumed risk that it may be shared with law enforcement. 

These doctrines were created before the concept of AI was introduced, and fail to accommodate the vastness of the internet. With new advancements in AI policing techniques, specifically involving face recognition. Investigators can theoretically use any photo available on the internet and compare it to evidence within a matter of seconds. However, when some of these initial photos were uploaded, technology like this did not exist, and individuals would not have been able to make an informed decision on whether to share them. 

Nesbit suggests the Supreme Court should adapt its doctrine to include prongs such as (1) Was the character of the government’s use of the information unforeseeable at the time of initial exposure?; (2) Did the character of the government’s use become foreseeable between the time of initial exposure and the time of use?; and (3) If the character of the use became foreseeable, did the person take reasonable steps in a reasonable timeframe to limit the potential for use by the government? Questions such as these would allow for the precedent to be more adaptable to advancing technology in police investigations. 

This essay is helpful because, while it is narrowed to constitutional law, it explores how we can begin to regulate AI. It highlights the dangers of AI, specifically in privacy.