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In addition, there are potential due process concerns that arise from being investigated and prosecuted using proprietary probabilistic algorithms. Finally, there is considerable opposition to using probabilistic evidence to support a verdict. In the end, these restrictions define the worst-case scenario for the SEC, should it decide to adopt link prediction technology.

When building the topographical map emanating from a suspected insider trader, transactional data is king. While transactional data is certainly contained on private devices, and the seizure of those devices would require a warrant discussed in Section C , a subpoena to produce those records does not. Furthermore, a sea of transactional data is kept in third-party storage e.

We have interpreted relevance broadly. A Lack of Constitutional Constraint. As for protesting a subpoena issued for data stored on third-party servers e. The third-party doctrine, which states that one gives up any reasonable expectation of privacy when one gives information to a third party, leaves the subject of the transactional records without a constitutional leg to stand on.

Fortunately for the SEC, the SCA provides a few exceptions, [] including a mandate that government entities be given access to non-content data when presented with an administrative subpoena. Final Thoughts on Transactional Data Acquisition. When that network is coupled with a list of company employees and business relationships, a well-trained link prediction system should be able to detect simple, and potentially complex, hidden links, telling investigators where to start digging.

Unlike for transactional data, the SCA provides increased protection for stored content, such as the body of an email. But even then, protections are minimal. The statute requires a warrant to access content in storage for less than days, [] but content stored for longer may be requested through administrative subpoena with prior notice. Nevertheless, during an investigation, waiting days may not be feasible.

Moreover, other important information—for example, electronic address books—may only be stored locally on privately owned devices, requiring a warrant to access. With warrants come more robust protections from the Fourth Amendment. This in turn raises concerns about finding probable cause based solely on probabilistic statistical data, such as a statistical probability that a trade was illegal.

The Requirements of Probable Cause.

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As the Constitution protects against unreasonable search and seizure, the inquiry turns on objective reasonableness. This is discussed below. Using Probabilities for Probable Cause. Nevertheless, many have argued the merits and strikes against using solely probabilistic evidence to satisfy the Fourth Amendment. The Argument for Probabilistic Probable Cause. Recent research on decision-making suggests that humans come to conclusions by entertaining multiple narratives, reevaluating their likelihood based on information as it is received.

Moreover, we routinely use probabilistic evidence to satisfy the Fourth Amendment without regarding it as such.

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Finally, the use of quantitative empirical data reduces reliance on intuition, which infuses the constitutionally mandated question of reasonable likelihood with subjective valuations. Even the standard of probable cause itself suffers from subjectivity issues. For example, in one study, a professor asked federal judges to quantify probable cause. For that reason, one might argue a probable cause inquiry based solely on probabilistic information undermines the role of the reasonable actor by reducing what was intended to be an unconstrained evaluation of the totality of the circumstances into a pure numbers game.

Statistical evidence, rather than being taken as gospel, should be evaluated by investigators by questioning the credibility of its source and its relative value to the investigation, among other things. The Individualized-Evidence Requirement in this Context. Indeed, scholars have argued that big-data predictions are an insufficient independent basis to satisfy the Fourth Amendment.

While the idea of using a sweeping generality—like the street corner example above—as carte blanche to search anyone who falls within its umbrella seems patently unreasonable, in other contexts, we are perfectly comfortable relying on correlations built upon information gathered from sources other than the suspect to infer illegal conduct. As mentioned above, there are few qualms about using a drug-sniffing dog as the basis for a lawful search.

However, a dog is not trained by smelling a particular suspect with and without drugs. The dog alerts its officer to a smell that has, in the past, successfully been associated with drugs. In essence, the suspect is searched for smelling like other circumstances the dog has been exposed to.

The same can be said for breathalyzers. Final Thoughts on Probabilistic Probable Cause. Thus, the permissible use of probabilistic evidence must turn on other factors. One factor separating the street corner example from a breath test is the degree of accuracy. Another separating factor is how central the conduct being scrutinized is to the offense in question. Yet another, some have argued, is the amount of individualized information used as the basis for the prediction. If these differences are meaningful, there should be no reason why statistical evidence of a trade too fortuitous to have been legal cannot pass muster under the Fourth Amendment, allowing investigators to obtain a warrant to search the personal devices of suspected insider traders.

Provided that market-monitoring systems are sufficiently accurate, the conduct being scrutinized is the trade suspected of yielding fraudulent gains, and it is being critiqued in part by the magnitude of those gains. Generally, the Fourth Amendment is said to displace Fifth Amendment due process claims arising from searches or seizures because the Fifth Amendment is not intended to serve as a vortex for substantive rights housed elsewhere in the Constitution.

But some have argued that the Fourth Amendment might not always dictate the constitutional propriety of pulling data.

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The foremost due process concern is a lack of transparency, which may hide a multitude of sins. Inaccuracies in expansive, interconnected collections of electronic information raise grave concerns for individual liberty. The offense to the dignity of the citizen who is arrested, handcuffed, and searched on a public street simply because some bureaucrat has failed to maintain an accurate computer data base is evocative of the use of general warrants that so outraged the authors of our Bill of Rights.

Indeed, the questions of fairness are many: If it took a computer two hours to do what a team of investigators would have taken weeks to do, how can defendants hope to unwind the steps taken by an algorithm to mount a defense against the information it found valuable? Do defendants receive due process when the building blocks of their criminal cases are only rebuttable through a battle of experts?

Moreover, police are not allowed to recklessly withhold exculpatory evidence from an affidavit for a warrant. How would anyone know that such evidence was not taken into account? There are no answers to these questions. For that reason, the Fifth Amendment might provide a means to protest the use of such evidence despite the general rule that searches and seizures are best analyzed under the Fourth.

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As to the extent defendants should expect to find shelter in the Fifth Amendment, at this point, it is too early to tell. Although there has been no word from the United States Supreme Court, various courts have held that probabilistic evidence alone cannot support a verdict. However, this debate makes it difficult to hope that insider trading prosecutors will be able to reliably secure a verdict by proffering only a prediction that a trade was based on insider information and a prediction that the information was obtained from a particular source to satisfy two of the necessary elements of the action.

Investigators will be unable to use market analysis or link predictions as a means to secure a warrant, and prosecutors will be unable to use that data to sustain a verdict.

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But even with these limitations, the SEC is poised to benefit greatly from link prediction.