A couple weeks ago the United States Supreme Court held in a 6-3 decision that police conducted a
Fourth Amendment search
where they obtained a person's cell phone location data through a
Geofence
Warrant. The case was Chatrie v. United States, and it revolved around determining a suspect from a
bank robbery that happened a couple years prior. The gist is that the content of the search (a few
hours of location data) stored in a consented 3rd party data collection service (Mr. Chatrie had
consented to Google Map's Location History mechanism at some point) did indeed constitute a Fourth
Amendment search.
The majority opinion narrows the Third-Party Doctrine due to their understanding that a typical user
will tend to be the only person who views their own information that is located on a 3rd party
server, despite that information being voluntarily conveyed to that company's server. Justices
Jackson and Sotomayor went as far as to say the warrant gave officers a roving commission
to
demand more and more data without magistrate approval, with only the 3rd party (Google) being the
agent to set limits or stop them. The framework in Chatrie v. United States assumes a framework
where courts can police the boundaries of searches. What happens when the data already exists in
private hands, outside of any constitutional requirement? To understand why private surveillance
systems pose a unique threat, we need to return to the Framers' original anxiety—not about absolute
power, but about how systems of measurement and rules reshape human behavior.
Government systems, writ large, operate based in codified rules and regulations to reach towards a
principle of justice, fairness, and pursuits of different kinds. We imagine these sorts of
classifications and categorizations as rules to guide the mechanized state, powered by persons
acting out official roles. But, as James Madison wrote, if men were angels, no government
would be necessary.
When we look to the Constitution of the United States of America, we can
see this very
plainly in the ordering of the branches of the Federal Government, down to the powers given the
Executive and Legislature, and the lack of description for the Chief Justice. A system to protect
itself
and those subjected to its power.
We must recognize that the privilege of the Authors, those Founding Framers, in that their
understanding of these words' meaning binds all who cosign to it. With this concept (that by
describing we instill the writers' views into the discussion of the readers) we see that Framing is
everywhere. In the book The Score
, Prof. Nguyen describes Metrics this
way: a
technology
that
refines and guides our desires and goals towards a certain value perspective outside of ourselves.
When you concentrate metrics into one adjudicator (i.e. who facilitates the creation, review, and
evaluation), it is
a concentration of power. The Framers of the Constitution knew this fear of concentrated power: it's
why the Virginians were so against the idea of a Federal government overseeing the united States—
they wondered if they were trading one tyrant for another. Or in my labored analogy: one system of
metrics (the Crown) for another (compliance to Federal law) that would still lead to their undoing.
Which is why their system works so well: the balancing of powers, the public discourse, and the
natural impeding of discussion in congress leading towards more thought for thorny decisions. This
acknowledgement reflects that reality is messy and complex: these categories in bureaucracy miss out
on the complexity of people, their behavior, and their data (aka property
as Justice Gorsuch
noted), and how observations of these patterns are not neutral.
But what about decisions made without public input, related to the public? What if there is a third
party corporation involved that isn't ambiguous but incentives to assist
, or influence a
certain
outcome? Flock Group inc (DBA Flock Safety) is such a company in my eyes. The facial recognization
tech at Madison Square Garden (which recently been exposed as classifying people as Queer
without
disclosure, tracking one trans athlete for 2 years without notice) is another example of these
private public-dragnet repositories of identifying information.
These systems formalize a practice of establishing unasked/unconsented repositories of uniquely identifying information of the public, where law enforcement agencies can simply pay a subscription in order to access, causing an accountability deficit: an inability to audit, no oversight, and no recourse for errors. These surveillance systems are value-laden, meaning they (like our system of laws) imbue meaning and insight based in their categorization systems without anyway to audit (i.e. did MSG verify the sexual identities, or just assumed someone with blue hair is gay?). The people who make these software systems are not pillars of integrity who study the rules of society— they are mercurial software engineers.
These purveyors of security software
are encouraged through the mechanisms of the market to
find
better value proposition for their services, which means creating more versatile tools (i.e.
LLM-based query engines) for law enforcement officers to use because asking for a warrant has too
much legal friction. Systems like Flock Group Inc's spring up due to the ubiquitous and trivial
license plate reader system, which opens the door to the more nefarious functionality of a database
that works across state lines.
How do you establish a narrative? In creative writing you let the story unfold for a captive
audience. For law, you know the facts but it's the team of lawyers who articulate a defining story
by framing facts into a narrative, and it's up to the jury to determine if the plaintiff or
defendant are right (or a judge in summary rulings). Surveillance systems, with their arbitrary
categorization systems, frame people into subjective stories. If law enforcement using systems like
Flock Group Inc or Madison Square Garden's vast database, which have no public audibility with
limited transparency of authenticity, which develop their own category system outside of the justice
system, to support developing behaviors of the law enforcement, what stories are we allowing to come
into existence when these systems label an individual as a person of interest
based on some
black
box system?
Digital Tyranny: a virtual system that infers perfectly
based on scrubbing away the very
intrinsic
messy facets of reality our laws strive to protect.