By Christopher A. Rogers | 64 Am. U. L. Rev. 337 (2014)

The United States Government is currently developing a system that can read minds—a situation that George Orwell envisioned when he wrote Nineteen Eighty-Four. The Future Attribute Screening Technology (“FAST”), currently being tested by the U.S. Department of Homeland Security (DHS), employs a variety of sensor suites to scan a person’s vital signs, and based on those readings, to determine whether the scanned person has “malintent”—the intent to commit a crime.

FAST is currently designed for deployment at airports, where heightened security threats justify warrantless searches under the administrative search exception to the Fourth Amendment. FAST scans, however, exceed the scope of the administrative search exception. Under this exception, the courts would employ a balancing test, weighing the governmental need for the search versus the invasion of personal privacy of the search, to determine whether FAST scans violate the Fourth Amendment. Although the government has an acute interest in protecting the nation’s air transportation system against terrorism, FAST is not narrowly tailored to that interest because it cannot detect the presence or absence of weapons but instead detects merely a person’s frame of mind. Further, the system is capable of detecting an enormous amount of the scannee’s highly sensitive personal medical information, ranging from detection of arrhythmias and cardiovascular disease, to asthma and respiratory failures, physiological abnormalities, psychiatric conditions, or even a woman’s stage in her ovulation cycle. This personal information warrants heightened protection under the Fourth Amendment. Rather than target all persons who fly on commercial airplanes, the Department of Homeland Security should limit the use of FAST to where it has credible intelligence that a terrorist act may occur and should place those people scanned on prior notice that they will be scanned using FAST.

Finally, if the Department of Homeland Security deploys FAST in a Minority Report-like approach by using it to detect a person’s intent to commit ordinary crimes—such as murder, theft, or drug smuggling—FAST does not fall under the administrative search requirement and must meet the Fourth Amendment’s warrant requirement or another exception to the warrant requirement.

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