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Can Americans Resist Surveillance?

18 Pages Posted: 25 Jul 2015 Last revised: 16 Jul 2016

Ryan Calo

University of Washington - School of Law; Stanford University - Law School; Yale Law School

Date Written: July 23, 2015

Abstract

This essay analyzes the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technology, and put market pressure on companies not to cooperate with law enforcement.

In practice, however, many of these avenues turn out to be limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn the citizen into a target. Citizens can extract promises from companies to push back against government surveillance on their behalf but have no recourse if these promises are not enforced.

By way of method, this essay adopts James Gibson's influential theory of affordances. Originating in psychology, and famous everywhere but law, affordance theory has evolved into a general method of inquiry with its own useful vocabulary and commitments. This essay hopes to leverage these concepts to lend structure to an otherwise haphazard inquiry into the capability of citizens to perceive and affect surveillance. The essay meanwhile contributes to affordance theory by insisting that law itself represents an important affordance.

Keywords: surveillance, privacy, affordances, technology

Suggested Citation

Calo, Ryan, Can Americans Resist Surveillance? (July 23, 2015). University of Chicago Law Review, Vol. 83, No. 1, Pp. 23-43 (Winter 2016); University of Washington School of Law Research Paper No. 2015-25. Available at SSRN: https://ssrn.com/abstract=2635181

Ryan Calo (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

Stanford University - Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

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