Surveillance and the Tyrant Test

Authors

Andrew Guthrie Ferguson, American University Faculty AccountFollow

Document Type

Article

Publication Date

2021

Journal

Georgetown Law Journal

Journal ISSN

0016-8092

Volume

110

First Page

205

Abstract

How should society respond to police surveillance technologies? This question has been at the center of national debates around facial recog- nition, predictive policing, and digital tracking technologies. It is a debate that has divided activists, law enforcement officials, and academ- ics and will be a central question for years to come as police surveillance technology grows in scale and scope. Do you trust police to use the tech- nology without regulation? Do you ban surveillance technology as a manifestation of discriminatory carceral power that cannot be reformed? Can you regulate police surveillance with a combination of technocratic rules, policies, audits, and legal reforms? This Article explores the taxon- omy of past approaches to policing technologies and-finding them all lacking-offers the "tyrant test" as an alternative. The tyrant test focuses on power. Because surveillance technology offers government a new power to monitor and control citizens, the response must check that power. The question is how, and the answer is to assume the worst. Power will be abused, and constraints must work backwards from that cynical starting point. The tyrant test requires institutional checks that decenter government power into overlapping com- munity institutions with real authority and enforceable individual rights. The tyrant test borrows its structure from an existing legal framework also designed to address the rise of a potentially tyrannical power-the U.S. Constitution and, more specifically, the Fourth Amendment. Fearful of a centralized federal government with privacy invading intentions, the Fourth Amendment-as metaphor and methodology-offers a guide to approaching surveillance; it allows some technologies but only within a self-reinforcing system of structural checks and balances with power centered in opposition to government. The fear of tyrannical power motivated the original Fourth Amendment and still offers lessons for how society should address the growth of powerful, new surveillance technologies.

Recommended Citation

Andrew G. Ferguson, Surveillance and the Tyrant Test, 110 Georgetown Law Journal 205 (2021).
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/2008