Namrata Kakade
88 Geo. Wash. L. Rev. 788
The Supreme Court developed the Fourth Amendment doctrine of reasonableness during a time before big data technology had lent itself to powerful algorithms that police could use to predict the likelihood of criminal activity. Now, police are able to use presumably “objective” algorithms that assign individuals dangerousness scores based on racially- and socioeconomically-skewed information—such as contacts with the criminal system—with little transparency around how they work. With the rise in popularity of these algorithms, it is imperative to answer what, if any, Fourth Amendment protections against police use of force remain. In the context of persistent police brutality against people of color, primarily poor Black communities, it is unclear how the Fourth Amendment use of force doctrine will protect against law enforcement using these algorithms to make decisions. This Note describes how the current Fourth Amendment reasonableness standard will treat predictive policing algorithms. The Note then explains why this treatment would not allay the concerns surrounding predictive policing and suggests how the Court can start to adapt existing doctrine to better accommodate big data technology and predictive algorithms.
