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The Judicial Response to Mass Police Surveillance

Journal of Law, Technology & Policy, Vol. 2011, No. 2, p. 281, 2011

UC Berkeley Public Law Research Paper No. 1956787

48 Pages Posted: 10 Nov 2011 Last revised: 22 Apr 2016

Stephen Rushin

Loyola University Chicago Law

Date Written: November 8, 2011

Abstract

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

Rushin, Stephen, The Judicial Response to Mass Police Surveillance (November 8, 2011). Journal of Law, Technology & Policy, Vol. 2011, No. 2, p. 281, 2011; UC Berkeley Public Law Research Paper No. 1956787. Available at SSRN: https://ssrn.com/abstract=1956787

Stephen Rushin (Contact Author)

Loyola University Chicago Law ( email )

IL

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