Algorithmic Jim Crow

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on the back end in the form of designing, interpreting, and acting upon vetting and screening systems in ways that result in a disparate impact

Reverse-Commandeering

Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anti-commandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state immigration laws such as Arizona’s controversial Senate Bill 1070 (SB 1070), the subject of the Court’s recent decision in Arizona v.United States, and also in the Legal Arizona Workers Act (LAWA), the subject of the Court’s consideration in Chamber of Commerce v. Whiting during the prior term. The Court upheld Section 2(B) of SB 1070 in Arizona, and upheld LAWA in Whiting, finding these state laws were not preempted by federal immigration law. Yet, in this Article, I conclude that these laws nonetheless interfere with the federal government’s exclusive power to control immigration policy at the national level. Thus, the constitutionality of state immigration laws such as SB 1070 and LAWA should be interpreted within an anti-commandeering framework. This doctrinal shift, from the preemption doctrine to the anti-commandeering doctrine, allows federal courts to examine the constitutionality of state immigration laws through a more explicit federalist lens

Brief of Scholars of the History and Original Meaning of the Fourth Amendment as Amici Curiae in Support of Petitioner: \u3cem\u3eCarpenter v. United States\u3c/em\u3e

Law enforcement officials wanted to learn where Petitioner Timothy Carpenter was at the time of certain robberies. To figure that out, they obtained records from his cellular service provider showing the movements of his cell phone. Examining those records, they were able to track Carpenter’s whereabouts over a four-month period. Obtaining and examining those records was a “search” in any normal sense of the word—a search of documents and a search for Carpenter and one of his personal effects. It was therefore a “search” within the meaning of the Fourth Amendment. When the Amendment was ratified, to “search” meant to “examine,” “explore,” “look through,” “inquire,” “seek,” or “try to find.” Samuel Johnson, A Dictionary of the English Language (10th ed. 1792). Nothing about the text of the Fourth Amendment, or the historical backdrop against which it was adopted, suggests that the term “search” should be construed more narrowly in that Amendment to mean only conduct violating “an actual (subjective) expectation of privacy” that “society is prepared to recognize as ‘reasonable.’” Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Plainly, by examining and looking through Carpenter’s cell site location records to seek the whereabouts of his person and phone, the government agents in this case conducted a “search.” Although those who drafted and ratified the Fourth Amendment could not have anticipated cellphone technology, they would have recognized the dangers inherent in any state claim of unlimited authority to conduct searches for evidence of criminal activity. Cell site location information provides insight into where we go and what we do—potentially revealing one’s intimate relationships, hobbies, predilections, medical conditions, religious beliefs, and political pursuits. Because this information is constantly generated and can be retrieved by the government long after the activities it memorializes have taken place, unfettered government access to cell site location information raises the specter of general searches and undermines the security of “the people.

The Ironic Privacy Act

This Article contends that the Privacy Act of 1974, a law intended to engender trust in government records, can be implemented in a way that inverts its intent. Specifically, pursuant to the Privacy Act’s reporting requirements, in September 2017, the U.S. Department of Homeland Security (DHS) notified the public that record systems would be modified to encompass the collection of social media data. The notification justified the collection of social media data as a part of national security screening and immigration vetting procedures. However, the collection will encompass social media data on both citizens and noncitizens, and was not explicitly authorized by Congress. Social media surveillance programs by federal agencies are largely unregulated and the announcement of social media data collection pursuant to the reporting requirements of the Privacy Act deserves careful legal attention. Trust in the Privacy Act is at risk when the Act’s notice requirements announce social media data collection and analysis systems under the guise of modifying record collection and retention protocols. This Article concludes that the social media data collection program proposed by DHS in September 2017 requires express legislative authorization

Critical Data Theory

Critical Data Theory examines the role of AI and algorithmic decisionmaking at its intersection with the law. This theory aims to deconstruct the impact of AI in law and policy contexts. The tools of AI and automated systems allow for legal, scientific, socioeconomic, and political hierarchies of power that can profitably be interrogated with critical theory. While the broader umbrella of critical theory features prominently in the work of surveillance scholars, legal scholars can also deploy criticality analyses to examine surveillance and privacy law challenges, particularly in an examination of how AI and other emerging technologies have been expanded in law enforcement practices, and homeland and national security programs. To take one example of AI’s impact, this Article argues that mass incarceration’s technological interdependencies and trajectories can be better conceptualized through Critical Data Theory. This Article proposes that the theory can help assess the computational and AI impact of technological developments that may exacerbate mass incarceration and limit criminal procedure rights

Big Data Blacklisting

“Big data blacklisting” is the process of categorizing individuals as administratively “guilty until proven innocent” by virtue of suspicious digital data and database screening results. Database screening and digital watchlisting systems are increasingly used to determine who can work, vote, fly, etc. In a big data world, through the deployment of these big data tools, both substantive and procedural due process protections may be threatened in new and nearly invisible ways. Substantive due process rights safeguard fundamental liberty interests. Procedural due process rights prevent arbitrary deprivations by the government of constitutionally protected interests. This Article frames the increasing digital mediation of rights and privileges through government-led big data programs as a constitutional harm under substantive due process, and identifies the obstruction of core liberties with big data tools as rapidly evolving and systemic. To illustrate the mass scale and unprecedented nature of the big data blacklisting phenomenon, this Article undertakes a significant descriptive burden to introduce and contextualize big data blacklisting programs. Through this descriptive effort, this Article explores how a commonality of big data harms may be associated with nonclassified big data programs, such as the No Work List and No Vote List-programs that the government uses to establish or deny an individual\u27s eligibility for certain benefits or rights through database screening. The big data blacklisting harms of big data tools to make eligibility decisions are not, of course, limited to nonclassified programs. This Article also suggests how the same consequences may be at play with classified and semi-classified big data programs such as the Terrorist Watchlist and No Fly List. This Article concludes that big data blacklisting harms interfere with and obstruct fundamental liberty interests in a way that now necessitates an evolution of the existing due process jurisprudence

Bulk Biometric Metadata Collection

Smart police body cameras and smart glasses worn by law enforcement increasingly reflect state-of-the-art surveillance technology, such as the integration of live-streaming video with facial recognition and artificial intelligence tools, including automated analytics. This Article explores how these emerging cybersurveillance technologies risk the potential for bulk biometric metadata collection. Such collection is likely to fall outside the scope of the types of bulk metadata collection protections regulated by the USA FREEDOM Act of 2015. The USA FREEDOM Act was intended to bring the practice of bulk telephony metadata collection conducted by the National Security Agency (“NSA”) under tighter regulation. In the wake of the disclosures by Edward Snowden in June 2013, members of Congress called for statutory reform to eliminate or significantly curtail indiscriminate metadata surveillance of United States citizens. The Snowden revelations illuminated that the bulk telephony metadata collection program had been legally justified under Section 215 of the USA PATRIOT Act. This Article contends that the USA FREEDOM Act, which amended Section 215 of the USA PATRIOT Act, does not restrict other types of non-telephony bulk metadata collection. This Article concludes that, rather than more tightly regulating metadata surveillance, the Act allows for metadata surveillance to proceed under differing justifications and in more delegated contexts. The potential of ubiquitous and continuous data collection and analysis that may stem from smart body cameras or smart glasses worn by law enforcement offers an important case study on why the USA FREEDOM Act is unable to regulate bulk biometric metadata collection

From the National Surveillance State to the Cybersurveillance State

This article anchors the phenomenon of bureaucratized cybersurveillance around the concept of the National Surveillance State, a theory attributed to Professor Jack Balkin of Yale Law School and Professor Sanford Levinson of the University of Texas School of Law. Pursuant to the theory of the National Surveillance State, because of the routinized and administrative nature of government-led surveillance, normalized mass surveillance is viewed as justified under crime and counterterrorism policy rationales. This article contends that the Cybersurveillance State is the successor to the National Surveillance State. The Cybersurveillance State harnesses technologies that fuse biometric and biographic data for risk assessment, embedding bureaucratized biometric cybersurveillance within the Administrative State. In ways that are largely invisible, the Cybersurveillance State constructs digital avatars for administrative governance objectives and targets digital data deemed suspicious. Consequently, constitutional violations stemming from cybersurveillance systems will be increasingly difficult to identify and challenge

Bulk Biometric Metadata Collection

Smart police body cameras and smart glasses worn by law enforcement increasingly reflect state-of-the-art surveillance technology, such as the integration of live-streaming video with facial recognition and artificial intelligence tools, including automated analytics. This Article explores how these emerging cybersurveillance technologies risk the potential for bulk biometric metadata collection. Such collection is likely to fall outside the scope of the types of bulk metadata collection protections regulated by the USA FREEDOM Act of 2015. The USA FREEDOM Act was intended to bring the practice of bulk telephony metadata collection conducted by the National Security Agency (“NSA”) under tighter regulation. In the wake of the disclosures by Edward Snowden in June 2013, members of Congress called for statutory reform to eliminate or significantly curtail indiscriminate metadata surveillance of United States citizens. The Snowden revelations illuminated that the bulk telephony metadata collection program had been legally justified under Section 215 of the USA PATRIOT Act. This Article contends that the USA FREEDOM Act, which amended Section 215 of the USA PATRIOT Act, does not restrict other types of non-telephony bulk metadata collection. This Article concludes that, rather than more tightly regulating metadata surveillance, the Act allows for metadata surveillance to proceed under differing justifications and in more delegated contexts. The potential of ubiquitous and continuous data collection and analysis that may stem from smart body cameras or smart glasses worn by law enforcement offers an important case study on why the USA FREEDOM Act is unable to regulate bulk biometric metadata collection