Immigration Article of the Day: Border-Style Surveillance Creep by Mary D. Fan
Border-Style Surveillance Creep by Mary D. Fan,
Abstract
The migration of border-style surveillance tactics and technologies into American cities exposes critical gaps in Fourth Amendment protections. The future of the Fourth Amendment is in flux, with technology-aided surveillance tactics outpacing judicial interpretation. Even as the Supreme Court tackles the constitutionality of geofence warrants for Google location revealing persons present at the time and place of a crime, new technology and tactics are posing fresh challenges. Immigration agents are collecting biometric identifiers and cell phone data from people present at targeted places, such as a protest, or disfavored cities, with no warrant at all—not even a contested geofence warrant—and no discrete crime. Even as Google tries to resist geofence warrants by storing location data locally, other private companies are offering new ways to collect and mine data without guardrails.
This article illuminates how the intersection of Fourth Amendment exceptionalism for border searches and data surveillance enables warrantless—and crimeless—data-dredging dragnets against disfavored groups, from noncitizens, to protesters, and beyond. The article analogizes the problems with government data dredging to the error-fraught practice deplored in statistics—also called p-hacking, data fishing and data snooping—where data is crunched without a justified plan until potentially spurious misleading associations are found. Drawing on the history of the Fourth Amendment as a bulwark against authoritarian overreaching, the article calls for updating protections to put crimeless government data dredging at the core of Fourth Amendment protections against unreasonable searches and seizures.
