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Abstract: The relationship between technology and criminal procedure is typically described as follows. Technological innovation outpaces case law, statutes, and regulations. As technology evolves, judicial decisions that regulate its use may become outdated. Lawmakers and regulators typically react too slowly to new investigative technologies. Police officers exploit these jurisprudential, legislative, and regulatory vacuums. Law enforcement may deploy new investigative technologies that lack adequate transparency and oversight mechanisms, and that impact individuals’ fundamental rights. Individuals cannot challenge secretive investigative tactics that are unknown to them. But technology not only outpaces case law, legislation, and regulation; emerging technologies progressively weaken constitutional norms.
This article argues that the cumulative effects of technological innovation and lax criminal procedure doctrines erode constitutional rights. It shows how two investigative strategies circumvent traditional constitutional protections: changing the normative quality of information gathering and changing the normative quality of information from private to public. To increase these strategies’ effectiveness, officers use technology to leverage the criminal procedure doctrines of abandonment, waiver, and plain view searches—all of which weaken reasonable expectations of privacy. This article shows how the growth of these criminal procedure doctrines results in a one-way ratchet in criminal procedure, where the scope of police powers expands while the breadth of constitutional rights contracts or remains constant. It sets out how technology exacerbates this tendency.
The concluding parts of this article elucidate why three emerging investigative technologies— automated licence plate recognition, commercial DNA database searches, and facial recognition technology—risk eroding constitutional rights even further and must be regulated. It provides concrete proposals for how courts and lawmakers can safeguard individuals against these mass-surveillance technologies, and in doing so, restore the judiciary’s role in protecting constitutional rights against state power.
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