The Judicial Response to Mass Police Surveillance
Journal of Law, Technology & Policy, Vol. 2011, No. 2, p. 281, 2011
48 Pages Posted: 10 Nov 2011 Last revised: 22 Apr 2016
Date Written: November 8, 2011
The increasingly widespread use of police technologies like surveillance cameras, facial recognition software, and automatic license plate recognition (ALPR) systems threaten to fundamentally reshape our expectations to privacy in public spaces. These technologies are capable of recording copious amounts of personal data in an unprecedentedly efficient manner; I refer to the proliferation of these new technologies as the development of the digitally efficient investigative state. The legislative branch has not acted to address the tangible harms posed by this new technological order. I argue that the courts ought to respond to this burgeoning threat by treading a new doctrinal path to limit the indiscriminate collection of personal data. The courts are institutionally competent to craft an appropriate response and properly positioned to address the unique majoritarian concerns implicated by widespread police surveillance. I also contend that the development of the digitally efficient investigative state should serve as a medium for the courts to more systematically reassess our Fourth Amendment doctrine, in recognition of the transformative and pervasive effects of emerging technologies on individual privacy.
Keywords: Fourth Amendment, Police, Surveillance, Technology, Privacy, Data, License Plate Reader, Facial Recognition, Global Positioning System, GPS, Jones, Maynard
JEL Classification: K14, K30, K10, K00, K20, K30, K39, K40, K49
Suggested Citation: Suggested Citation