Fraerman, Ali


In the past two decades, police forces have come to rely on algorithm-based technologies for investigative leads. Several of these technologies are unreliable. They are prone to error, misidentifying suspects, and crimes. When relied upon, they lead to false arrests and unnecessary stop-and-frisks. Yet, there is no coercive mechanism, either regulatory or judicial, that meaningfully governs the use of these algorithmic technologies in law enforcement. As a result, law enforcement agencies are free to disregard potential errors and deploy emerging technologies against communities with little recourse.

This Article looks closely at three technologies—ShotSpotter gunshot detection, facial recognition technology, and rapid DNA machines—to illuminate reliability issues common to privately-held algorithmic technologies and exacerbated by police misuse. Law enforcement agencies fail to screen technologies before using them to support individualized suspicion for searches and seizures. Thus, the police end up targeting criminal defendants based on unreliable information. But the Fourth Amendment does not meaningfully provide defendants with an avenue to challenge the reliability of technologies used to develop probable cause and reasonable suspicion. Extrajudicial regulation is needed to ensure that the technologies used by law enforcement are reliable. If law enforcement agencies continue to deploy unreliable technologies, courts should suppress evidence stemming from their use.



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