CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, March 23, 2020

Ferguson on Structural Surveillance

Andrew Guthrie Ferguson (American University Washington College of Law) has posted Structural Surveillance (Iowa Law Review, Forthcoming) on SSRN. Here is the 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.

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