Structural Surveillance

67 Pages Posted: 16 Mar 2020

See all articles by Andrew Guthrie Ferguson

Andrew Guthrie Ferguson

American University Washington College of Law; University of the District of Columbia - David A. Clarke School of Law

Date Written: March 10, 2020

Abstract

City infrastructure is getting smarter. Embedded smart sensors in roads, lampposts, and electrical grids offer governments a way to regulate municipal resources and police a new power to monitor citizens. This structural surveillance, however, raises a difficult constitutional question: Does the creation of continuously recording, long-term, aggregated data collection systems violate the Fourth Amendment? After all, recent Supreme Court cases suggest that technologies that allow police to monitor location, reveal personal patterns, and can be used to track personal details for long periods of time are Fourth Amendment searches which require a probable cause warrant.

This Article uses the innovation of smart city structural design as a way to rethink current Fourth Amendment theory. This Article examines the Fourth Amendment search questions that may render structural surveillance unconstitutional, and then offers a legal and practical design solution. The Article argues that Fourth Amendment principles must be built into the blueprints of urban design. At a micro-level, privacy rules must be embedded alongside data collection rules. At a macro-level, a comprehensive legal framework must be integrated with digital design choices. Only by thinking about municipal code and computer code simultaneously can smart cities avoid the emerging Fourth Amendment challenge.

Keywords: Fourth Amendment, Smart Cities, Sensors, Sensorveillance, Police, Privacy, Surveillance, Criminal Justice, Criminal Procedure, Technology, Searches

Suggested Citation

Ferguson, Andrew Guthrie, Structural Surveillance (March 10, 2020). Iowa Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3552051

Andrew Guthrie Ferguson (Contact Author)

American University Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

University of the District of Columbia - David A. Clarke School of Law ( email )

4200 Connecticut Ave. NW
Washington, DC 20008
United States

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