LAW AND POPULAR CULTURE Minority
When this 2002 Stephen Spielberg fi lm was released, its tagline read: “What would you do if you were accused of a murder you had not committed… yet?” The fi lm takes place in Washington, D.C. in the year 2054. Crime in the city is practically nonexistent because the “Pre-Crime Unit” of the police force apprehends criminals before they actually commit any crimes. John Anderton (played by Tom Cruise) and his fellow pre-crime police offi cers are able to do so thanks to the information provided to them from three “precogs”—genetically mutated humans who have the ability to see the future. Their visions occur in dreamlike states, complete with the “disjunctions and distortions of regular dreams” (Capers 2009, p. 798). The precogs project their visions onto a screen so that police can try to make sense of how the crime will unfold, thereby allowing them to make a preemptive arrest. Anderton believes the system to be fl awless until the precogs predict that he will commit murder. Thus, the chief of the Pre-Crime Unit becomes a fugitive for a crime he has yet to commit. At the end of the movie, Anderton arrests the person whom the precogs predicted he would kill. Notably, he reads the suspect Miranda warnings when making the arrest. While the fast-paced action fi lm raises a number of philosophical points, it clearly implicates some Fourth Amendment concerns. For one thing, the Washington D.C. of the future has become a surveillance state. Individuals are tracked via eye scans as they move about the city. Public spaces are surveillance spaces. But then again the same could be said of many cities today. We currently permit such surveillance on the theory that individuals do not have a reasonable expectation of privacy, the sine qua non of a Fourth Amendment right, in information that they knowingly expose to the public and also on the theory of consent. Thus, the expectation of privacy we theoretically enjoy behind closed doors, we lose in public spaces, at least in terms of items exposed to public view. In this respect, the surveillance state that exists in Minority Report is the surveillance state that current Fourth Amendment law already sanctions. But Minority Report, in a scene in which the police use thermal imaging to ascertain the number of individuals in a building and then release mechanical spiders to conduct retinal scans of those individuals in a search for John Anderton, does serve as a cautionary tale of sorts, exposing the steep declivity of a slippery slope. The scene recalls Kyllo v. United States, in which the Supreme Court held that thermal imaging directed at a private residence amounted to a search and thus required a warrant supported by probable cause. Except here, the technology seems to have been refined to survive constitutional scrutiny. In United States v. Jacobsen, the Court read the Fourth Amendment as protecting only legitimate activity and thus excluding from its ambit government conduct that could only reveal illegitimate activity. In United States v. Place, the Court assumed canine sniffs disclose “only the presence or absence of narcotics, a contraband item” and thus fell within this category. Followed to the extreme, these cases would permit the very mechanical spiders that are used to such effect in Minority Report, assuming such spiders are only capable of “seeing” the eyes of, say, a fugitive (Capers, p. 800–801).
1. Recall from this chapter that a lawful arrest must be supported by probable cause. What do you think of the idea of preemptive arrests? Do you think that “visions” of the future from a consistently reliable source, such as the fictional precogs, should be sufficient to establish probable cause for an arrest? Does the fact that the precogs were wrong in Anderton’s case affect your view?
2. What do you make of Professor Capers’ argument that the surveillance depicted in the movie Minority Report is of the same qualitative type that is permitted today? Do you think we should reasonably expect any privacy when we are out in public?
3. Professor Capers points out that the thermal imaging scan in Minority Report would not be permissible today under the Supreme Court’s ruling in Kyllo v. United States. However, he cites two additional pieces of precedent which could be interpreted as allowing mechanical spiders to conduct retinal scans. Do you think that type of technology would be an invasion of privacy if used out in public? What about if such devices were used to perform retinal scans of people inside private residences?
4. As stated above, Miranda warnings are alive and well in 2054. Why do you think that television shows and movies have embraced Miranda? Do you think it is good or bad that these warnings are so engrained in our national psyche that they work their way into science-fi ction scripts that depict the future? Why?