Artificial Intelligence and the Anti-Authoritarian Fourth Amendment 

Abstract

AI-based surveillance and policing technologies facilitate authoritarian drift. That is, the systems of observation, detection, and enforcement that AI makes possible tend to reduce structural checks on executive authority and to concentrate power among fewer and fewer people. In the wrong hands, they can help authorities detect subversive behavior and discourage or punish dissent, while enabling corruption, selective enforcement, and other abuses. These effects, although subtle in today’s relatively primitive AI-enabled systems, will become increasingly significant as AI technology improves.

Today, the most influential branch of Fourth Amendment scholarship conceives of the Fourth Amendment’s central purpose as preserving citizen privacy against intrusive government observation. Another, less prominent line of scholarship emphasizes the Fourth Amendment’s role in preventing government authoritarianism, focusing on concepts like power, security, and citizen autonomy. The insights of this latter branch of Fourth Amendment theory are likely to be increasingly relevant as AI comes to play a larger role in surveillance and law enforcement.

The pro-authoritarian nature of AI law enforcement should influence how courts assess such law enforcement under the Fourth Amendment. This symposium Essay examines the role that Fourth Amendment law can play in regulating AI-enabled enforcement and preventing authoritarianism. It contends that, among other things, courts assessing whether networked camera or other sensor systems implicate the Fourth Amendment should account for the risks of unregulated, permeating surveillance by AI agents. Judges evaluating the reasonable use of force by police robots should consider the dangers of allowing AI systems to monopolize the use of force in a jurisdiction and the diminished justifications for self-defense. Likewise, courts can incorporate factors specific to the AI context into their totality of the circumstances analyses of Fourth Amendment reasonableness. Whether there is a “human in the loop” during enforcement encounters, and whether there is meaningful civilian oversight over AI-enabled enforcement programs, should play a substantial role in assessing the reasonableness of AI-centered police practices. By adapting the principles of the anti-authoritarian Fourth Amendment to the new frontier of AI law enforcement, legal actors can restrain the pro-authoritarian effects of emerging law enforcement technologies.