Psychological Testing and Fourth Amendment Searches

Orin Kerr at the Volokh Conspiracy has recently posted summary material (see here) from Judge Posner's February 2005 decision in Greenawalt v. Indiana Dept of Corrections, 397 F.3d 587 (7th Cir. 2005).  In that case, a researcher working for Indiana's state prison system was required to submit to a psychological test.  Posner's decision discusses whether such a requirement constitutes an unconstitutional "search," and the panel decides that it does not. 

The issues discussed may eventually shape (limit?) the scope of our right to privacy in our brains. Here is some of the key language from the opinion:

Nevertheless we do not think that the Fourth Amendment should be interpreted to reach the putting of questions to a person, even when the questions are skillfully designed to elicit what most people would regard as highly personal private information. The cases we have cited show, it is true, that a Fourth Amendment claim does not depend on the claimant's being able to establish an invasion of such interests that tort law traditionally protects as the interest in bodily integrity (protected by the tort of battery), in freedom of movement (protected by the tort of false imprisonment), and in property (protected by the torts of trespass and of conversion). But that is all they show, so far as bears on the issue in this case. The implications of extending the doctrine of those cases to one involving mere questioning would be strange. In a case involving sex or some other private matter, a government trial lawyer might be required to obtain a search warrant before being allowed to conduct a cross-examination--or the judge before being allowed to ask a question of the witness. Police might have to obtain search warrants or waivers before conducting routine inquiries, even of the complaining witness in a rape case, since they would be inquiring about the witness's sexual behavior. Questioning in a police inquiry or a background investigation or even a credit check would be in peril of being deemed a search of the person about whom the questions were asked. Psychological tests, widely used in a variety of sensitive employments, would be deemed forbidden by the Constitution if a judge thought them "unreasonable."

Comments

[Richard Glen Boire]

Interesting case, but I don't think it frames the novel issues that are really at stake with "brain privacy."

I have a commentary in the upcoming issue of the American Journal of Bioethics that argues for brain privacy in the context of new brain-based deception detection and truth verification technologies.

The article should be out any day. I'd love to hear your comments if you have a chance to read it.

I enjoy your blog very much,
-richard glen boire
www.cognitiveliberty.org
www.convictionfree.com

[Adam Kolber]

Yes, please let me know when your piece is out so that I can call attention to it on the Neuroethics & Law Blog.

And thanks for your substantive comment and your support of the blog.