Sparer Forum Lifts Curtain on Tech-Driven Surveillance Techniques

Technologies such as ride-sharing apps, text messaging, and search engines have brought convenience to our lives, but the price paid has been a steady uptick in surveillance capabilities and an erosion of privacy, according to speakers at “Who Watches the Watchers: Surveillance and the Law," the title of this year’s Edward V. Sparer Public Interest Law Forum. 

Legal concerns about current surveillance tactics, particularly by government and law enforcement, drove a March 23 discussion moderated by Ruth Bader Ginsburg Professor of Law Susan Herman, president emeritus of the ACLU and author of Taking Liberties: The War on Terror and the Erosion of American Democracy, and Austen Fisher ’24, co-chair of the school's chapter of the National Lawyers Guild, and held at the Subotnick Center. 

While Fourth Amendment rights protecting people from “unlawful search and seizure” were inspired by American Revolutionary fighters concerned about English agents searching their homes for seditious literature or undocumented barrels of taxable rum, today’s government “watchers” use technological work-arounds outside of the Fourth Amendment framework, Herman said.  

 “According to Supreme Court case law, the Fourth Amendment almost never applies to government agents—meaning federal, state, or local agents enforcing criminal law, immigration law, family law, or whatever kind of law—who can obtain public information from third parties, which means our banks, telecom companies, medical providers, maybe our Internet service provider,” Herman said. “So, it's only one very short and easy step from what Google and Apple know about you to what the government can get hold of.” 

Panelists exploring the issues included Lisa Washington, Assistant Professor of Law at Brooklyn Law School; Mark Potkewitz, Adjunct Professor of Clinical Law at Brooklyn Law School, associate at Bortstein Legal Group, and General Counsel of ForHumanity; Sarah Lamdan, Professor of Law at CUNY School of Law, and author of Data Cartels: The Companies that Control and Monopolize Our Information; and David Siffert, legal director of the Surveillance Technology Oversight Project (S.T.O.P.), and Adjunct Clinical Professor at NYU Law.   

The Rise of Data Brokers 

One major point of discussion was data brokers—companies that collect and sell information on individuals.  

“There’s a booming, multibillion-dollar data-brokering industry that profits by collecting tons of our data from thousands of sources and then selling that data to both government agencies and government law enforcement agencies, especially, but also other institutions that make big decisions about our lives: insurance companies, financial industry institutions, and child welfare systems which make decisions about when to intervene in family life,” Lamdan said.  

In her book, Lamdan focuses on legal research and data brokerage firm LexisNexis and Westlaw parent company Thomson Reuters, which obtain data from more than 10,000 unspecified sources, including public records, social media, and law enforcement, she said. 

“They have over 223 million data dossiers—including probably for everyone in this room—ranging from 40 to 200 pages in length,” Lamdan said. Not only is the accuracy of the collected data questionable, but it can also be used to perpetuate biases, based on immigration status, race, or religion, she said. 

Third-party Doctrine and Tracking in Criminal Investigations 

Another key discussion point was the impact of the “third-party doctrine,” alluded to by Herman, which was established by a couple of 1970s era Supreme Court cases. Potkewitz pointed to Smith v Maryland (1979), in which the Court found that police use of pen registers to record all numbers called from a particular telephone line did not constitute a violation of the Fourth Amendment’s “legitimate expectation of privacy” because the phone company had access to those numbers.  

“It has been broadly interpreted in subsequent cases to say that anything that you turn over to a third party loses that Fourth Amendment expectation of privacy,” Potkewitz said. “All of the cell towers we’re pinging off of, the emails that we send, the sites that you visit, our electronic purchases, the ride shares that we’re doing… all of these things could easily be subject to government investigation without having to go before a judge and, to me, that's terrifying.” 

While Congress passed the Electronic Communications Privacy Act of 1986 to address digital communications, it has not been updated. “Has anything happened to electronic communications since then?” Herman asked, to laughter from the audience.  

Siffert said that STOP is also concerned about law enforcement using cameras equipped with facial-recognition abilities in public spaces and the ability of police to obtain data from other government agencies. 

“If you're applying for benefits, if you interact with the government in any particular way, there's rarely any sort of firewall between that information and law enforcement,” he said. STOP wrote a New York state bill that would create a firewall for people's personal information, requiring law enforcement officials to get a warrant. STOP is also concerned about the criminalization that can result from “geofence warrants,” in which law enforcement investigators use location databases to obtain cell phone and affiliated user lists in a specific geographic area during a given time.  

Washington expressed concern about excessive surveillance, such as the use of ankle monitors on immigrants.  

“I think there's a danger that we use surveillance for certain people to replace incarceration in an effort to limit some of the harms that mass incarceration has caused,” Washington said, pointing to the negative impact on families. “We will not be able to surveil our way into public safety.” 

While the increased levels of surveillance and the decrease in privacy protection seem grim, legislation may be key. In Europe, GDPR (General Data Protection Regulation) enacted in May 2018 placed restrictions on business and government to protect personal data and a similar law exists in California, Potkewitz said. New York has also passed some privacy protection laws. 

 “If the political will is there, and people actually care about this, change will be made and you can regulate what kind of data is collected,” Siffert said. 

The forum was sponsored by Brooklyn Law School’s student chapters of the American Civil Liberties Union (ACLU), Legal Hackers, and the National Lawyers Guild. Rose L. Hoffer Professor of Law Elizabeth Schneider, founding director of the Sparer Public Interest Law Fellowship introduced the panel, and Professor of Law Cynthia Godsoe, director of the Sparer Fellowship program, gave concluding remarks.  

To view the video of the event, click here.