Surveillance and the Tyrant Test

86 Pages Posted: 28 Jan 2022

See all articles by Andrew Guthrie Ferguson

Andrew Guthrie Ferguson

American University Washington College of Law

Date Written: January 24, 2022

Abstract

How should society respond to police surveillance technologies? This question has been at the center of national debates around facial recognition, predictive policing, and digital tracking technologies. It is a debate that has divided activists, law enforcement officials, and academics and will be a central question for years to come as police surveillance technology grows in scale and scope. Do you trust police to use the technology without regulation? Do you ban surveillance technology as a manifestation of discriminatory carceral power that cannot be reformed? Can you regulate police surveillance with a combination of technocratic rules, policies, audits, and legal reforms? This Article explores the taxonomy of past approaches to policing technologies and—finding them all lacking—offers the “tyrant test” as an alternative.

The tyrant test focuses on power. Because surveillance technology offers government a new power to monitor and control citizens, the response must check that power. The question is how, and the answer is to assume the worst. Power will be abused, and constraints must work backwards from that cynical starting point. The tyrant test requires institutional checks that decenter government power into overlapping community institutions with real authority and enforceable individual rights.

The tyrant test borrows its structure from an existing legal framework also designed to address the rise of a potentially tyrannical power—the United States Constitution and, more specifically, the Fourth Amendment. Fearful of a centralized federal government with privacy invading intentions, the Fourth Amendment—as metaphor and methodology—offers a guide to approaching surveillance; it allows some technologies but only within a self-reinforcing system of structural checks and balances with power centered in opposition to government. The fear of tyrannical power motivated the original Fourth Amendment and still offers lessons for how society should address the growth of powerful, new surveillance technologies.

Suggested Citation

Ferguson, Andrew Guthrie, Surveillance and the Tyrant Test (January 24, 2022). Georgetown Law Journal, Vol. 110, No. 2, 2021, Available at SSRN: https://ssrn.com/abstract=4016828

Andrew Guthrie Ferguson (Contact Author)

American University Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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