The FCC has a proposal working itself through its rulemaking process with the following goals:

• Define AI-generated calls.

• Require callers to disclose their use of AI-generated calls and text messages.

• Support technologies that alert and protect consumers from unwanted and illegal AI robocalls.

• Protect positive uses of AI to help people with disabilities utilize the telephone networks.

Learn more about the proposed FCC rules here

What Considerations will the Courts need to weigh?

The courts have sought to balance the right to privacy with the needs of law enforcement, but new technologies and government surveillance practices are continually testing this balance.

The proliferation of surveillance technologies, such as drones, facial recognition, and advanced data analytics, continues to test the boundaries of constitutional protections. The challenge lies in ensuring that these technologies do not infringe upon the privacy rights guaranteed by the Fourth Amendment while allowing law enforcement to perform their duties effectively.

Privacy Considerations – The Fourth Amendment protects against unreasonable searches and seizures, which has been interpreted to include protections for electronic communications. Any system to detect AI calls would need to be carefully designed to avoid infringing on callers’ and recipients’ reasonable expectations of privacy.

Legal Challenges – The FCC’s proposal could face legal challenges based on Fourth Amendment grounds:

• Warrantless Surveillance: Detecting AI calls without a warrant may be seen as a form of search, potentially violating Fourth Amendment protections.

• Data Collection: Gathering data on call content or patterns to identify AI calls could be considered a “search” under recent Supreme Court rulings like Carpenter v. United States.

Balancing Interests – Courts would likely need to balance privacy rights against the government’s interest in preventing fraud and protecting consumers. The “reasonable expectation of privacy” standard established in Katz v. United States would be crucial in determining the constitutionality of AI call detection.

Technological Considerations – The specific technology used for detection could have Fourth Amendment implications. Less invasive methods that don’t analyze call content may be more likely to withstand constitutional scrutiny.

Where are we headed? – As AI technology evolves, expect the courts to reassess how the Fourth Amendment applies to new communication and surveillance tools and be prepared for new legal standards applied to privacy in telecommunications.

We’ll keep you informed on related regulatory developments. Questions? Call 800.787.4848 or jnolte@ctsmd.us.