Technological Tattletales and Constitutional Black Holes: Communications Intermediaries and Constitutional Constraints

Theoretical Inquiries in Law, Forthcoming

32 Pages Posted: 6 Jul 2016

See all articles by Lisa M. Austin

Lisa M. Austin

University of Toronto - Faculty of Law

Date Written: May 2015

Abstract

In this Article I argue that the emerging public/private nexus of surveillance involves the augmentation of state power and calls for new models of constitutional constraint. The key phenomenon is the role played by communications intermediaries in collecting the information that the state subsequently accesses. These intermediaries are not just powerful companies engaged in collecting and analyzing the information of users and the information they hold are not just business records. The key feature of these companies is that, through their information practices and architecture, they mediate other relationships. I argue that this mediating function, and its underlying technological form, interacts with legal and social norms in ways that can lead to the erosion of constraints on state power. This Article maps two stories of erosion, rooted in two kinds of community displacement. The first involves the displacement of community participation in law enforcement and the emergence of “technological tattletales” where intermediaries cooperate with the state. Unlike citizen cooperation, this practice augments state power and undermines more traditional informal modes of constraint on state power. The second involves the displacement of national legal and political community. Communications intermediaries are often large multinational companies that operate in multiple jurisdictions and move their data to various data centers across the world even as the individual data subject remains in one geographical location. Laws that treat nonresident aliens differently from residents and citizens can create “constitutional black holes” where the communications data of an individual is not protected by any constitutional constraints.

Keywords: Privacy, Surveillance, Constitutional Law, Information State

Suggested Citation

Austin, Lisa M., Technological Tattletales and Constitutional Black Holes: Communications Intermediaries and Constitutional Constraints (May 2015). Theoretical Inquiries in Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2804264

Lisa M. Austin (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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