Law enforcement has an increasing amount of access to personal digital data. Delmarva Public Media's Don Rush talks with Andrew Guthrie Ferguson, Georgetown Washington University Law School professor and author of "Your Data Will Be Use Against You: Policing in the Age of Self-Surveillance", about the potential for abuse. The full interview can be heard on this Friday's Delmarva Today at noon on WSDL and WESM.
RUSH: Law enforcement seen in television shows these days display a myriad of surveillance and face recognition technology. This is Don Rush. But in the real world, those same intrusions into your private life can have some real world legal consequences. In Delmarva Today's look at digital surveillance, we talked with Andrew Guthrie Ferguson, a professor at George Washington University Law School. He's authored a new book entitled, Your Data Will Be Used Against You.
FERGUSON: One of the things that has happened over the time as the Fourth Amendment has been interpreted... is that the Supreme Court in a bunch of earlier cases since 1970s, 1980s, said that when you provide information to a third party, you essentially forfeit that regional expectation of privacy. So for example, there's a case involving bank records. If you literally are giving your money to a bank and you're kind of hoping that they keep good track of it because it's your money, the question would be, do you have an expectation of privacy in the sort the financial records in your bank? And the court in those early cases said no. They said, essentially, you gave the money to the bank. Police can come get that information. You have no expectation of privacy because of this sort of voluntary relinquishment. Now, what does that mean in a world where you are constantly using and relying on a third party for all of your digital communications, all of your digital actions, there's nothing that you are doing with a cell phone or a smart car or a smartwatch or a mobile banking that you are doing without some third party. Does that mean that you have relinquished all fourth amendment rights because you're dependent on a digital third party? That's an open question. Some of the justices have actually openly questioned it and said, that doesn't make sense in a digital world. But we're still in that sort of debate about how to interpret that sort of relinquishment of that.
RUSH: You point to this idea that, for instance, the changing laws... abortion, some of the new laws when it comes to transgenders, that those may be very well subject to digital observation, surveillance and this new age.
FERGUSON: People will say, well, but I don't do anything wrong. I live my life without getting in trouble. And I think that one of the realities of watching what's happening now is there was no threat of criminal prosecution of being pregnant in Texas or Idaho or places that were criminalized. Now, there is. So that you weren't worried about having your government targeted it if you walked out with a "No Kings" protest sign. Now, that could be part of a prosecution for violating some protest rule. I think the aperture of surveillance of who could get caught up in the surveillance has expanded to make this topic even more topical, because more people are now at risk of having their data used against them. If you just think about all of the digital clues that you leave every single day from when you leave your house, in your house, when you communicate with anyone, all of that, everything is evidence.
RUSH: How do you see this then playing out when it comes to, say, for instance, the immigration raise that we've seen?
FERGUSON: We are being given a glimpse of the power of these technologies, watching what ICE and Customs or Border Patrol is doing in Minneapolis and other cities. We are seeing for the first time in American history, mobile facial recognition technology being used in the wild. It's not like we didn't have that technology, but no one local law enforcement was using that in part because it's not ready for prime time, but also because it would create a backlash. We're seeing geolocation data, automated license plate readers. We're seeing new databases of investigative clues with social network analysis all being targeted in the immigration context. But the thing we have to remember is that everything you're seeing there could happen in your local law enforcement tomorrow.
George Washington University Law School Professor Andrew Guthrie Ferguson, author of Your Data Will Be Used Against You. The full interview can be heard on this Friday's Delmarva Today at noon on WSDL and WESM. This is Don Rush for Delmarva Public Media.
