Neurotechnology is advancing exponentially, and the laws of data privacy and security cannot keep pace. Soon, governments will exploit this technology in criminal investigations with what this Note calls “neurosearches.” Scholars have argued against the compelled gathering of neurological evidence as a violation of the Fifth Amendment, likening it to testimony and thus barred as self–incrimination. But no court has said so explicitly.
This Note operates under the premise that compelled gathering of brain data survives a Fifth Amendment challenge and evaluates these neurosearches under the Fourth Amendment. Part I of this Note summarizes the contemporary state of neuroscience in the commercial marketplace and in the eyes of the law. Part II outlines the Supreme Court’s Fourth Amendment jurisprudence, detailing its application to technologically advanced searches. Part III contemplates the disposition of challenges to neurosearches based on the jurisprudence described in Part II.
This Note ultimately concludes that compulsory searches for proprietary brain data survive the reasonableness and particularity requirements of the Fourth Amendment and that commercial brain data falls within the third–party doctrine.
To read this Note, please click here: Neurosearches.
icon and
select "Add to Home Screen."