The Threat of Big Data Surveillance

You are being tracked by the digital clues you leave behind. On campus, every computer-log in, tweet, or electronic ID card potentially identifies your location. Outside school, depending on where you live, your car is tagged by automatic license plate readers, your face by surveillance cameras, and your social media posts captured by those wishing to monitor your activities. If you carry a smartphone, computer, or tablet, your digital life is being revealed to third party companies and the government entities that lawfully request that private information. These digital trails will only increase as the Internet of Things begins turning ordinary objects into data-rich sources of surveillance. In short, citizens (especially young, digitally savvy citizens) are creating a web of self-surveillance that offers convenience and social control in equal measure.

For some, this trade-off is just the cost of life-improving technology. The price for free information from Google or cool apps to organize your life is paid in personal data. For others, however, the trade-off has greater costs. For those who wish to criticize the government or corporate power, the ability to do so without surveillance is growing increasingly difficult. Activists involved in the Movement for Black Lives and the Standing Rock Pipeline protest have been monitored using social media surveillance. Protesters who visited an Anti-Trump website to organize protests around the Presidential Inauguration have had personal data subpoenaed by the United States Attorney’s Office in Washington D.C. as part of a criminal case. And, as a regular practice now, law enforcement tracks suspects using new big data technologies that rely on new forms of social media, cellular, and digital surveillance.

The rise of big data policing will soon become a civil rights issue for the digital age. The role of direct government surveillance, indirect third-party surveillance, and unintentional self-surveillance should be debated now before the web of digital tracking becomes too tangled.

As an engaged citizen, here are three questions you should be able to answer to frame that coming debate in your local community: (1) what forms of law enforcement surveillance are in use in your community?; (2) what type of rules (legislative, constitutional, or contractual) are in effect to prevent the police from gaining access to the data you share with third parties?; (3) how can you control your personal data from being collected in ways you do not want? Surprisingly, despite the digital sophistication of so many citizens, these questions are largely unanswered.

Direct law enforcement surveillance has only recently become a democratic issue. For years, police have adopted new technologies without significant community input. Police buy predictive policing systems or drone cameras with little citizen oversight. Police install surveillance technologies with little public discussion. This practice is starting to be challenged in more progressive cities like Oakland and Seattle, which have seen activism to create surveillance citizen oversight councils, but the battles have been contentious and difficult. In New York City, a proposed surveillance oversight bill has been attacked by law enforcement as endangering public safety. And in most communities, there has not even been a debate.

The privacy rules that protect the data you provide to third party providers (Google, Apple, Facebook, Verizon, etc.) from government access are outdated. Congress has considered, but not acted, to rewrite the 1986 Electronic Communications Privacy Act (ECPA), which was drafted before the modern digital age. California has led the way to update state protections, but across the nation, legislative protections lag far behind the technology. Constitutional protections may fill in some of this gap. In the 2017-18 term, the U.S. Supreme Court will consider arguments in a Fourth Amendment case, Carpenter v. United States, on whether law enforcement can obtain cell-site tracking information without a warrant. The stakes are high, as a Court ruling for the government could open up most third-party data to warrantless requests by law enforcement. Without statutory or constitutional protection, that leaves private contractual protections, which, as anyone who has read a standard terms and conditions contract knows, are universally disempowering. Those of us who click “I agree” to the pages of boilerplate legalese know that we retain little contractual protection in our data.

Taking steps to protect personal data also remains a challenge. While many technologically sophisticated citizens have adapted to a mass surveillance world by using privacy protective apps, or choosing privacy protective digital strategies, the vast majority of Americans do not have the technological capacity to do so. Until companies provide simple data protective opt-outs and prompts, most citizens will unknowingly continue to provide streams of personal data without real privacy protections.

These questions and uncertainties apply to everyone, but only those who see this as a civil rights issue will feel compelled to act. The majority of digital citizens without the capacity to protest, rally, or fight need engaged advocates to fight for them. This is especially true for poor and marginalized communities that have traditionally borne the brunt of police surveillance. In recent years, national privacy groups like the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), the Center of Technology and Democracy (CDT), and a few others have led the fight. But civil rights movements also need foot soldiers to organize, engage, and inspire in local communities. For those who see the civil rights implications of new surveillance technologies, the time to engage, ask questions, and act in your local communities is now.

Andrew Guthrie Ferguson

Andrew Guthrie Ferguson is a Professor of Law at the UDC David A. Clarke School of Law.

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