Trademarks as Surveillance Transparency
36 Berkeley Tech. L. J. (2021 Forthcoming)
24 Pages Posted: 7 Apr 2020
Date Written: October 31, 2019
We know very little about the technologies that watch us. From cell site simulators to predictive policing algorithms, the lack of transparency around surveillance technologies makes it difficult for the public to engage in meaningful oversight. Legal scholars have critiqued various corporate and law enforcement justifications for surveillance opacity, including contract and intellectual property law. But the public needs a free, public, and easily accessible source of information about corporate technologies that might be used to watch us. To date, the literature has overlooked a free, extensive, and easily accessible source of information about surveillance technologies hidden in plain sight: federal trademark filings.
This Essay examines the powerful and unexplored role of trademark law in exercising oversight within and beyond surveillance. Trademark law promotes access to information, and the federal trademark application process—long overlooked by scholars—demands extensive public disclosures that reveal a wealth of information about surveillance technologies. This Essay leverages examples from real trademark applications to explore how journalists, researchers, and civil society can use the detailed disclosures in trademark applications for transparency. I conclude that trademark law can be a powerful tool for correcting longstanding information asymmetries between the watchers and the watched by empowering the public to watch back.
Keywords: trademarks, intellectual property, privacy, surveillance, transparency, technology law
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