CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, November 7, 2023

Roth on Neurosearches

Josh Roth has posted Neurosearches (109 Cornell L. Rev. (2024 Forthcoming)) on SSRN. Here is the abstract:
Neurotechnology is advancing exponentially, and the laws of data privacy and security cannot keep pace. Soon, governments will begin exploiting 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 the lines are not so fortified.

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.

The 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.

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