Can Predictive Analytics be Used to Hold Someone as a Danger to Themselves?

Minority Report continues to explore legal issues for a future that is seriously undermining civil liberties for security. Can Hawk-Eye’s predictive analytics be used to hold a person for 48 hours for observation?

In “Hawk-Eye,” the CEO of a company aptly named Narcissus, was put on a 48-hold for observation after purposely driving the wrong direction on the highway at a high rate of speed (reckless driving that would justify an arrest). The Hawk-Eye system cataloged and analyzed his behavior and vitals, thus activating the car’s self-driving mood to return him to home for observation. Other examples included placing a hold on someone exhibiting warning signs of suicide.

Could predictive analytics of data be legally used to show a person is a danger to himself or herself? The answer is maybe.

California allows someone to be placed on a 72-hour hold under the following:

(a)  When a person, as a result of a mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, professional person in charge of a facility designated by the county for evaluation and treatment, member of the attending staff, as defined by regulation, of a facility designated by the county for evaluation and treatment, designated members of a mobile crisis team, or professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in a facility designated by the county for evaluation and treatment and approved by the State Department of Health Care Services. At a minimum, assessment, as defined in Section 5150.4, and evaluation, as defined in subdivision (a) of Section 5008, shall be conducted and provided on an ongoing basis. Crisis intervention, as defined in subdivision (e) of Section 5008, may be provided concurrently with assessment, evaluation, or any other service.

Cal Wel & Inst Code § 5150.

California case law further explains:

[A] state of facts must be known to the peace officer (or other authorized person) that would lead a person of ordinary care and prudence to believe, or to entertain a strong suspicion, that the person detained is mentally disordered and is a danger to himself or herself or is gravely disabled. In justifying the particular intrusion, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant his or her belief or suspicion. [Citations.] Each case must be decided on the facts and circumstances presented to the [detaining person] at the time of the detention [citation], and the [detaining person] is justified in taking into account the past conduct, character, and reputation of the detainee. [Citation.]” 

Heater v. Southwood Psychiatric Center, 42 Cal. App. 4th 1068, 1080 (Cal. App. 4th Dist. 1996).

Predictive analytics that complies a persons purchases and health data might constitute specific and articulable facts to show a person is a danger to themselves or others. For example, data analytics could cause an alert someone could be considering suicide from the following:

Public cameras shows a person purchasing line, a stool, and steel eyebolts that could support a person’s weight;

Social media posts include statements that they have no reason to live; and

Social media posts expressing rage.

Would that be enough to demonstrate probable cause to justify an observation hold? This person could be venting about home improvement projects or is considering suicide. There is a reason to have someone knock on this person’s door, but a hold might not be supported without more evidence.

The challenge with Hawk-Eye is 1) it is the tool of a police state and 2) the data that would truly show concerning behavior would require a search warrant. For example, police cannot simply monitor bank accounts. Furthermore, law enforcement cannot use technology such as infrared thermal imaging devices on private residences without obtaining a search warrant. There are limits on what law enforcement can use on the pubic, so Hawk-Eye at best would be limited to what is in “plain view.” Even then, the prediction on behavior would need to be validated by more than one data point for analysis.

Will police one day find ways to analyze publicly visible data? Without a doubt. Society must decide what is acceptable, such as whether law enforcement can use drones without search warrants and similar issues created by technology.