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Surveillance

Published on February 2017 | Categories: Documents | Downloads: 16 | Comments: 0

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Introduction
The police tend to think those who evade surveillance are
criminals. Yet the evasion may only be a protest against the
surveillance itself. How do we tell the difference, and why does
it matter? Surprisingly, legal commentators and judges have
not given these questions serious attention.
We should be especially surprised because the
surveillance capacities of the police have expanded
dramatically. These technologies have made it possible for
government surveillance to become more pervasive,
bureaucratic, and routinized. The federal government
anticipates that the near future will bring wider adoption of
facial recognition software and domestic surveillance drones.
Iris-scanners are already being used by the Department of
Homeland Security, the American military, the NYPD, and
police departments around the country. Dozens of American
cities have adopted Shotspotter technology: sophisticated
listening devices designed to identify the location of gunshot
sounds within forty feet. Cities like San Francisco, Baltimore,
and Columbus have installed audio surveillance systems on
public buses that are capable of recording and storing
conversations. Other cities, like New York, Miami, and Los
Angeles, are adopting or considering the adoption of an
extensive network of surveillance cameras directed at public
spaces, just as the city of London has already established.
Ordinary American life today cannot be easily lived without
being targeted by government surveillance. Many, if not most,
people acquiesce to these demands for information about
them, either out of acceptance or resignation.

But some people object. They take steps to thwart police
surveillance, not because they are seeking to conceal criminal
acts, but out of ideological belief or personal conviction.
Advice on “surveillance defense” and counter-surveillance
products is readily available on the internet: Use Tor to surf
the internet. Encrypt your digital communications. Use
disposable “guerilla email” addresses and disposable phone
numbers. Avoid ordinary credit cards and choose only cash,
prepaid debit cards, or bitcoins to make a financial trail harder
to detect. Avoid cell phones unless they are “burners”
(prepaid phones), “dumb phones,” or “freedom phones” from
Asia that have had all tracking devices removed. Alternatively,
hide your smartphone in an ad hoc Faraday cage, like a
refrigerator, to avoid being tracked. Use photoblocker film on a
license plate or a ski mask to thwart a red-light camera. Use a
Spyfinder camera detector to see if someone is watching you.
Use “spoof cards” that mask your identity on caller
identification devices. Burn your garbage to hamper
investigations of your financial records or the collection of
your genetic information. Hire a professional to alter your
digital self on the internet by erasing data or posting multiple
false identities. At the extreme end, you could live “off the
grid” and cut off all contact with the modern world.
These are all examples of what I call privacy protests:
actions individuals may take to block or thwart surveillance
from the police for reasons that are unrelated to criminal
wrongdoing. Unlike people who hide their activities because
they have committed a crime, those engaged in privacy
protests do so primarily because they object to the presence of
perceived or potential government surveillance. People engage
in these protests for all kinds of reasons, whether these
reasons are political, philosophical, idiosyncratic, or just
paranoid. These protests are not necessarily the work of
extremists, either. The revelation in June 2013 that the
National Security Agency has been collecting the telephone
records of millions of Americans prompted both calls for
greater oversight as well as numerous mainstream media
articles providing advice on avoiding government surveillance.

Those unhappy with a governmental policy have many
options, most of them more socially accepted than the acts
described here. For many, social change takes the form of
lobbying a legislator, organizing a grassroots campaign, or
harnessing social media for one’s cause. Yet in one sense,
privacy protests function in the same way as these activities
because they involve expressions of protest against what
individuals feel is governmental overreach. However, privacy
protests differ from more conventional forms of protest
because of their individualistic and ad hoc nature. As
government surveillance capabilities expand, privacy protests
may become an even more important form of social action.
Yet, for the police, privacy protests are easily grouped
together with the evasive actions that those who have
committed crimes take. The evasion of police surveillance may
look the same whether perpetrated by a criminal or a privacy
protestor. Tor, an encryption tool that permits near-anonymous
use of the internet, is used both by those who value digital
privacy and by criminals. For this reason, privacy protests
against the police and the government have been largely
underappreciated within the criminal law literature.
Because they are not limited to antitechnology protests,
many seemingly dissimilar acts ought to be considered privacy
protests. At first glance, a teenager in Brownsville, New York
who always avoids the police no matter what he is doing
shares little in common with a libertarian-minded internet user
who scrupulously erases his digital trails. Yet each of these
actions may be similar in intention and function. How we
consider one act should inform how we consider the other.
Moreover, these protests share a pedigree with more
recognizable concerns about governmental overreaching.
While the Supreme Court has not recognized privacy protests
in particular, many justices over time have noted that our
constitutional traditions reflect suspicions about overzealous
government surveillance. Even in 1966, Supreme Court Justice
William Douglas famously raised the concern that we were
already “rapidly entering the age of no privacy, where
everyone is open to surveillance at all times; where there are
no secrets from government.”

Though these “everyday forms of resistance make no
headlines,” we should not ignore privacy protests, for they
reveal social understandings of privacy and can inform how we
justify government surveillance. There are, of course, many
organizations (civil liberties groups, professional associations,
and other government agencies) that monitor and speak out
against privacy intrusions that the government commits, but
this Article focuses on individuals and their attempts to block
surveillance. A focus solely on the legal victories of organized
groups committed to limiting governmental overreaching may
serve to downplay the importance of individual actions. The
focus of this Article is the following: How do ordinary people
resist surveillance, and how should it influence our
understanding of policing?
This Article aims to document privacy protests and to
discuss why the police and courts should not ignore them. Part
I begins by identifying seemingly disparate acts that can be
grouped together as privacy protests. Part II describes how
these privacy protests have little salience either in police
assessments of suspicious behavior or in judicial assessments
of Fourth Amendment law. Part III demonstrates that despite
this inattention, privacy protests have potential social value
that counsels careful governmental responses. These
individual actions demonstrate that the boundaries of privacy
and legitimate governmental action are the product of a
dynamic process. A more comprehensive account of privacy
must consider not only the attempts of individuals to exert
control over their own information, lives, and personal spaces,
but also the ways in which they take active countermeasures
against the government (and private actors) to thwart
attempts at surveillance.

I. WHAT ARE PRIVACY
PROTESTS?

There are many ways to avoid, block, or deny police
attempts to gain access to your personal information.
Criminals too, will often take the very same steps to avoid
discovery of their criminal wrongdoing. In many cases, the
steps a person takes when she believes she is being surveilled
look the same whether she is a criminal or an opponent of
overzealous government surveillance. Relying heavily on
prepaid cellphones, for instance, can serve different purposes:
to avoid discovery of criminal activity or to thumb your nose at
the police.
Some of these techniques are simple and relatively
inexpensive, such as wearing a disguise, staying in constant
movement, and speaking in secluded places. Other methods,
however, rely on increasingly sophisticated and inexpensive
technologies available for purchase, either in the legitimate
consumer marketplace or in black markets. Some private
detectives have reversed their traditional role as trackers by
helping people erase their digital “footprints” on the internet
and in electronic records by creating multiple identities,
generating false electronic documents, and wiping out truthful
information. Consumers can also buy computer software such
as Evidence Eliminator to “wipe” computer hard drives and
counter-surveillance programs to find out if someone is
monitoring their computer.

Of course, some steps individuals take are so extreme or
so expensive that they are unlikely to represent only a privacy
protest. Just as the possession of burglar’s tools can point to
little else but the likelihood of a past or planned crime, some
actions have little noncriminal value. Expense is a factor. The
fabrication of genetic information is likely expensive enough to
discourage widespread consumer use, at least for now.
Changing small details of one’s records on the internet may
require modest expense and effort, but the creation of an
entire virtual identity, accompanied by the real world creation
of an alternate address and bank account and the deliberate
use of a credit card in several locations, is likely to be
undertaken only by someone who does not wish to be found
under any circumstances. Criminals may be the only people
who elect to undergo identity-changing plastic surgery, but
there are matters of degree. Asking a surgeon to graft skin
from another part of the body to one’s fingertips is likely the
act of a fugitive; applying superglue to one’s fingertips may
not be.
Apart from these extreme examples, individuals take
numerous steps to shield their actions from the government
even though they are not engaged in any criminal activity.
Despite innocent intentions, privacy protests often suggest to
the police that individuals are behaving in criminally
suspicious ways, because most of these actions are
indistinguishable from steps criminals often take.
No matter what their level of sophistication, privacy
protests can be categorized into several types. Sociologist
Gary Marx classifies several ways in which people deliberately
avoid surveillance. The sections that follow define several
important categories of such surveillance evasions and provide
examples of their criminal and noncriminal uses.

A. Discovery Moves
Some people simply want to find out whether the police
are watching them and what the nature of that surveillance is.
A simple technique exploiting the presence of cyanoacrylate, a
chemical in Super Glue, can detect the presence of another
person’s fingerprints on places where fingerprinting dust
cannot. Surveillance cameras and GPS detectors can reveal the
presence of human or electronic eavesdroppers.
Those engaged in privacy protests might also borrow
techniques from the criminal world to test the motivations of
friends, neighbors, or business associates. Criminals
necessarily rely upon discovery moves to distinguish real
criminal associates and potential customers (drug users, johns,
and the like) from phonies. The demand for “criminal
credentials” usually requires that a person commit a crime. In
a criminal organization such as La Cosa Nostra, a would-be
member’s willingness to “make his bones” (i.e., kill someone)
to become a “made guy” is required in part to reveal the
presence of undercover police. A longstanding technique used
by street drug sellers is a demand that a suspect buyer
consume some of the product before the sale. Here, the
assumption the seller makes is that an undercover agent
would not consume illegal drugs; police officers are typically
prohibited from ingesting drugs except in life threatening
emergencies. To counter this counter-surveillance technique,
many undercover officers have developed strategies either to
feign drug use or to present credible stories that explain their
inability to “test” the goods. Borrowing from these techniques,
one might choose to question an unfamiliar social contact
extensively before revealing any personal information.

B. Avoidance Moves
If I discover that I am the target of surveillance, I may
seek to avoid it by moving in time and space to places where
the surveillance is absent or is unlikely to find me. At one time,
the constant switching of meeting places, safe houses, and pay
phones might have sufficed to protect privacy. Today, however,
surveillance targets often need to avoid specific technologies
that are easily capable of tracking, such as cell phones,
electronic toll responders, and retail loyalty shopper cards.
Such technologies can pinpoint a person’s precise location in
time and space. These avoidance moves can sometimes
backfire, however, and draw police attention. For instance,
prepaid cellphones, or “burners,” are favorites of drug dealers
and political activists because they require no identification for
purchase. Yet large purchases of prepaid cell phones have also
aroused police suspicions that the users were involved in
terrorist planning activities.

C. Blocking Moves
If avoidance moves are passive, those engaged in
masking or blocking moves take more active steps both to
signal that they are aware of the surveillance as well as to
avoid detection. In blocking moves, the surveillance target
tries to prevent access to the information the police seek. For
example, criminals often resort to blocking moves. A common
scene from bank heist films involves thieves donning women’s
pantyhose to obscure their features. Professional shoplifting
rings use booster bags lined with foil or duct tape to block
anti-theft scanners from detecting stolen merchandise.
Similarly, privacy protests can be used to block police
surveillance. Consider facial recognition software of the sort
the Tampa police used at the 2001 Superbowl to identify
terrorists and felons. Such software relies heavily on the
measurements around the eyes and nose, but has its
limitations. Artist Adam Harvey, who has drawn attention for
his products designed to thwart surveillance technology,
discovered that dramatic facial makeup thwarts facial
recognition software. Thus, attempts to create an “anti-face”
with makeup confuse the computer algorithms powering such
software and render them useless. Faces that cannot be
detected with facial recognition software.
Many blocking moves are available to anyone through the
use of cheap and legal technologies. An inexpensive laser
pointer can disable a surveillance camera. A thirty-dollar
device bought over the internet can jam GPS signals so they
cannot be tracked. Blocking films frustrate license plate
readers. Companies like Silent Circle have developed
technologies to permit “surveillance-resistant”
communications on mobile devices. One day it may be possible
to mask conversations with “audio cloaks” that generate
digital “noise,” or to prevent unwanted photography by
wearing jewelry with infrared light that blurs pictures taken in
one’s direction.

D. Masking Moves
A masking move goes further than blocking access to the
sought information by presenting false or misleading clues
such as manufactured social security numbers, identities, or
license plates. Both blocking and masking moves may prevent
the police from retrieving authentic information (such as
names, serial numbers, or addresses), but masking moves are
intended to deceive the police. In some cases, the police may
not realize that they have been misled.
A voice distortion device changes the quality and pitch of
a caller’s voice. A GPS “spoofer” can provide misleading data
about location; for instance, a fishing boat captain could use
such a device to hide his location in illegal fishing waters. A
virtual phone number with no physical location, or a
misleading one, makes it nearly impossible to find out the
caller’s location. The purposeful addition of small errors in the
spelling of one’s name and address in online records can make
internet tracking more difficult. In the futuristic film The
Minority Report, the main character undergoes black market
eye replacement surgery to avoid being hunted down in a
world where optical recognition machines pervade ordinary
life. In real life, fugitives may don wigs, odd clothes, makeup,
and, in some extreme cases, may undergo plastic surgery.
Fabricated DNA might one day be used to mask one’s genetic
traces.

E. Why People Avoid
Surveillance
What distinguishes privacy protests from the evasive
steps criminals take are the intentions behind such protests. In
addition, privacy protests have at least the potential to be
socially useful. While a criminal’s motives are generally
unsympathetic, a person engaged in a privacy protest may
have motives that resonate with those who identify
themselves as civil libertarians, critics of “big” government,
and even anarchists, although the protester may not formally
align herself with any particular group.
Because the perceived threats are not easily identifiable,
the reasons for some of these protests will be difficult to
distinguish from one another. Some will evade perceived
government surveillance, not because they object to a single
act of surveillance, but rather to protest the hundreds of
pieces of data collected about them that provide, when
assembled, a “digital dossier” about their lives. Complicating
matters further is the fact that the data police use may be
initially collected by private entities that sell and share
information to other parties for a profit. Yet other individuals
object to the growing presence of surveillance in their lives no
matter whether it comes from public or private entities. The
use of a disposable email address might be an objection both
to private corporations that track consumers as well as to the
government.
Privacy protestors engage in these acts even though they
require extra effort. Burner phones, for example, protect
privacy, but they are also cumbersome to use when compared
to phones connected to larger service providers. Using prepaid
credit cards requires extra effort as well. In fact, privacy
protestors may resort to the same consumer products as the
poor who have no choice but to use prepaid phone and cash.
Privacy, like poverty, has its own costs.

Not all privacy protests represent a strike against
technology. When a neighbor draws his blinds or burns his
garbage, he is resisting surveillance. In some cases, privacy
protests originate out of racial or ethnic tensions. ArabAmericans in Detroit or African-Americans in the South Bronx
may engage in privacy protests because they feel police have
intruded needlessly into the private lives of others in their
communities, even if they have not been affected personally.
Yet what is not generally recognized is that these protests
—whether originating from the online community or urban
ones—are structurally similar. This has two consequences: 1)
Both types of protests should be treated similarly and 2) These
groups have a common interest that could spur collective
action.

II. PRIVACY PROTESTS AND
CRIMINAL SUSPICION
As the previous Section explained, privacy protests and
criminal secrecy may appear superficially similar, but they are
distinct in important respects. The problem with this apparent
similarity is that both kinds of evasion can attract police
suspicion, and suspicion is a central facet of the police officer’s
world view.

A. The Central Role of
Suspicion
Sociologists and reporters who have spent hours in patrol
cars with police can attest to one thing: Ordinary patrol work
consists of long stretches of boredom punctuated with the
occasional burst of excitement, and even more rarely, real
violence. The introduction of the two-way radio and the police
cruiser not only revolutionized patrol work, it also resulted in
the common practice of a single officer cruising around streets
while listening in for calls from central dispatch. While crime
fighting might be central to the self-image of the police, actual
policing is very much a service job catering to decidedly less
glamorous problems, such as the drunk and disorderly, family
disputes, and lost children. Yet police work is not only reactive.
Investigating suspicious behavior is an equally important tool
of policing.
Police officers depend upon their personal judgment of
suspicious behavior: an innately fuzzy, intuitive, and ill-defined
concept. To be sure, the modern police department’s crime
fighting arsenal includes crime mapping, statistical analysis,
and other quantitative data, but hunches—quick judgments
about suspicious behavior—remain significant In his famous
1960s study of the Oakland, California police, sociologist
Jerome Skolnick observed that the “working personality” of
the patrol officer can be characterized by a general
suspiciousness. That suspiciousness is premised upon a sense
of what is normal: a set of conditions based on a familiarity
with the community, interactions with the public, and the
collective knowledge of fellow officers. Little has changed
about this basic aspect of the police officer’s occupational
identity.

B. Police Suspicion and the
Fourth Amendment
Constitutional law constrains how the police may act upon
those suspicions. In order to comply with the Fourth
Amendment, the police must justify their reason for interfering
with a person’s liberty. The Supreme Court’s Fourth
Amendment decisions, however, have not regulated police
suspicion very restrictively. For more than forty years, the
Court has issued decisions that have both departed from the
Fourth Amendment’s literal probable cause requirement as
well as sanctioned lesser degrees of police suspicion that
permit interference with individual privacy.
The Court’s decisions do not provide much practical
guidance on the circumstances in which one can evade police
surveillance without drawing the kind of suspicion that results
in unwanted police questioning or pursuit. While the Court has
required that an officer have more than an “inarticulate
hunch[]” before restraining a person’s freedom of movement,
it has refrained from demanding a checklist or a set of
quantifiable factors for a constitutionally acceptable basis of
suspicion. The Court has even permitted the police to use
factors that are just as consistent with innocent as with
criminal behavior. Yet the Court has also recognized that the
refusal to cooperate with the police, without more, fails to
provide any required suspicion for further investigation, and
that people are free to walk away from the police or refuse to
answer questions without fear of being detained.

Nonetheless, an avoidance move in a bad neighborhood
can get you in trouble. In the late morning of September 9,
1995, Officer Timothy Nolan and his partner were assigned
with six other Chicago Police Department officers to patrol the
Eleventh District. Nolan and the others drove by Sam Wardlow,
who was standing on the street. When Wardlow saw the
officers, he fled down an alleyway. The flight prompted Nolan
to pursue Wardlow in his cruiser. Upon stopping and patting
Wardlow down, Nolan found a .38 caliber handgun and five
rounds of ammunition, and placed him under arrest for illegal
firearms possession. Nolan later testified that he and his fellow
officers were driving in the area because the Eleventh District
was notorious for its illegal drug trade. The Eleventh District
was, and continues to be, a section of Chicago that is plagued
by violent crime and illegal drug sales.
The Supreme Court ultimately upheld Nolan’s decision to
detain and frisk Wardlow. Two factors were critical to
supporting Nolan’s determination that he had the required
reasonable suspicion: the fact that Wardlow was in the
Eleventh District—a “high crime neighborhood”—and his
“unprovoked flight” from the police. Prior to Illinois v.
Wardlow, a number of lower courts had questioned whether
evading police surveillance could ever constitute a permissible
factor in an officer’s decision to detain anyone. Citing that
“dislike of authority” can be a legitimate concern, some lower
courts had explicitly rejected avoidance of the police as a basis
for reasonable suspicion. Other lower court decisions, however,
had held that evasive actions by themselves may justify a Terry
stop. The Supreme Court, however, found that Wardlow’s
decision to run was, if not strong evidence of wrongdoing, at
least “certainly suggestive of such.”

Because it was his flight from the police that prompted
police suspicion, Wardlow’s case is not only a story about drug
interdiction in a rough Chicago neighborhood, but also, when
understood broadly, an illustration of a privacy protest. Sam
Wardlow did in fact have something to hide, of course, and
that occasioned his flight. Yet before Nolan discovered his
handgun, Wardlow prompted suspicion because of his
avoidance move, an act that is as consistent with a privacy
protest as with criminality. That evasion, coupled with his
location, granted the police a license to stop and tackle
Wardlow.
The Supreme Court has, on many occasions,
acknowledged that Fourth Amendment decisions may
sometimes lead to the detention of innocent people. These
mistakes are explained as necessary risks that accompany
police work. Those engaged in privacy protests, however, are
not merely innocents who are caught up inadvertently in police
investigations. They may deliberately engage in tactics that
may pique police suspicion, although they have engaged in no
criminal activity. Fourth Amendment law provides little basis to
distinguish between behavior that legitimately invites police
suspicion and that which should be left alone because it might
protest the surveillance itself.

C. The Problem with Police
Suspicion
While police rely heavily on their own identification of
suspicious behavior, these judgments are not a particularly
sophisticated tool for ferreting out criminal wrongdoing.
Because suspicious behavior is often unusual behavior, police
judgments about criminally suspicious behavior are necessarily
hunches about abnormality, regularity, and conformity.
At best, an experienced police officer uses her knowledge
of the neighborhood, past experience with criminals, and
professional training to discern what is suspicious. Unless
clearly unsubstantiated, the Supreme Court has been reluctant
to second guess these judgments. Although the Fourth
Amendment requires the police to provide specific,
individualized reasons for stops and arrests, the likely truth is
that even seasoned officers probably cannot articulate fully
why a suspect stood out to them as criminally suspicious.
Recent literature on the quickly made judgments of police
officers and other professionals suggests that intuition can
produce reliable judgments. As journalist Malcolm Gladwell
discussed in his popular book Blink, quick and intuitive
judgments can be as accurate as deliberate and cautiously
made ones. Certainly, many of the hunches police act upon will
prove to be correct.

The problem, however, is that far too many hunches police
act upon are inaccurate. Innocent persons can be detained or
arrested as a result. While any process involving human
decision-making will produce some errors, the results of
problematic hunches in police work can be dramatic. For
example, the overwhelming majority—eighty-eight percent—of
the nearly 700,000 New Yorkers stopped in 2011 through the
NYPD’s aggressive stop-and-frisk policies were immediately
released. Many have argued that these stops of innocent
persons can be attributed to racism on the part of the police.
While conscious racist attitudes might explain some of these
unwarranted stops, they are unlikely to explain most of them.
Instead, many of these erroneous judgments can probably be
attributed to cognitive shortcuts that police officers use to
make quick decisions about whether to continue
investigations. Some of these heuristics have special relevance
in the context of privacy protests.
First, people often have erroneous first impressions
because they believe the people they judge are roughly similar
to them in beliefs, attitudes, and knowledge. Police
assumptions may be especially pernicious because their
“working personalities” tend to be more politically and socially
conservative than those of the general public, including those
communities they police. Many have pointed out that this
disparity is especially dramatic in low-income minority
neighborhoods, where police and members of the community
have few shared attitudes or experiences. Where people fear
the police because friends or family members have been the
victims of perceived harassment, understandable avoidance of
the police can easily be—and often is—interpreted as
consciousness of guilt. Similarly, members of the “hacker”
community often express strong skepticism about government
and consequently place a high value on methods that protect
privacy and promote digital anonymity.

A second common cognitive error can be attributed to our
reliance on a set of narratives to help us interpret the world.
The police, like the rest of us, rely upon these mental models
as they assess actual circumstances to see if danger or
criminality is present. The more diverse the set of mental
models an officer has in mind when interpreting data, the less
likely the conclusion the officer reaches is going to be wrong.
Thus, the goal is not to eliminate the use of stock stories, a
likely impossible task, but rather to “help police build richer
narrative mental models.”
The mental model that might have the most impact on
privacy protests is one that assumes that “innocent people
have nothing to hide.” The slogan the British government
adopted to promote its CCTV surveillance camera network
expresses the same sentiment: “[i]f you’ve got nothing to
hide, you’ve got nothing to fear.” Similarly, Google CEO Eric
Schmidt opined in a 2009 interview that “If you have
something that you don’t want anyone to know, maybe you
shouldn’t be doing it in the first place.” This worldview
assumes that all those who evade, block, or protest
government surveillance are hiding evidence of criminal
wrongdoing. Consider again the controversial stop-and-frisk
policies of the NYPD. In 2011, just over half of the stops these
officers conducted were justified on the observation of “furtive
movement” (as opposed to, for instance, fitting a known
description or carrying a suspicious object). Leaked documents
from the National Security Agency in 2013 revealed that the
use of encryption tools alone raised red flags warranting
heightened government attention. The pervasiveness of this
narrative, widely accepted by the general public as well as the
police, when compounded by the extreme deference accorded
to the police, means that privacy protests can be easily
classified with criminal acts.

Moreover, to the extent that the police may interpret
privacy protests as deliberate challenges to police authority,
this may further encourage the police to investigate when no
criminal wrongdoing is present. Sociologists have repeatedly
demonstrated that perceived disrespect for the police is an
important—indeed perhaps the primary—factor in determining
the degree to which police interfere with an individual’s
liberty. In this sense, then, the privacy protestor might present
the worst sort of affront to the police: someone who appears
to have something to hide and is proud of it.
These privacy protests incur costs well beyond individual
embarrassment, discomfort, and wasted time. Large numbers
of erroneous and seemingly unjustified police stops and
arrests can reduce the public trust in the police. This effect is
hardly symbolic, for erosion of trust can result in greater
noncompliance with the law, as well as refusals to cooperate
when the police seek witnesses and volunteered information.

D. How Privacy Protests Figure
in Policing
Privacy protests do not affect all forms of police
investigation. They have little importance in traditional
investigative techniques that target a specific person or group
of people based on previously gathered intelligence. When the
police are investigating a known suspect regarding a homicide,
for example, those who engage in privacy protests are not
likely to arouse police suspicion.
Where privacy protests do matter, however, are cases
where police have neither prior intelligence nor a known
target. Instead, the police start out with a legal violation and
look for evidence and criminals. The targets are unknown
because the police are “trolling” or “fishing” for suspects. In
such instances, the police have an offense or a group of
offenses they are interested in investigating, and seek
patterns of suspicious activity that might identify potential
suspects.
Police efforts to uncover terrorist activity exemplify these
open-ended investigations. Unlike many other kinds of crimes,
terrorism is an offense that places special emphasis on
preventive policing. Added to these pressures is the highly
secretive nature of terrorist planning. In response, police rely
primarily on two options: covert policing, which requires the
penetration of closed criminal groups, and the identification of
patterns of suspicious activity. In this latter approach, the
police look for behaviors and activities that suggest the
planning or execution of terrorism plots without necessarily
having any particular person or activities in mind.

Privacy protests are also relevant as technologies expand
surveillance capacities. This bureaucratic surveillance makes
possible the collection of large quantities of data that can be
sifted through multiple times for multiple purposes. The
ubiquity of such surveillance changes the very nature of
policing, as New York’s Court of Appeals recently observed.
Technological innovations—in that case, a GPS unit—give the
police a “new technological perception of the world” that is
equivalent to the addition of “millions of additional police
officers” in every city.

III. RECOGNIZING AND
PROTECTING PRIVACY
PROTESTS
The police will likely consider privacy protests as
annoyances or distractions, to the extent that they attract
police attention without producing evidence of criminality.
Nevertheless, privacy protests can serve several socially useful
purposes.

A. What Privacy Struggles
Mean
First, privacy protests can raise doubts about the
necessity of a particular method of governmental surveillance.
Some investigative techniques are highly effective, yet on
balance they may be too intrusive to be practicable if they
generate widespread privacy protests. In other cases, privacy
protests might draw attention to the fact that certain
surveillance techniques, such as facial recognition software,
are not particularly effective at catching criminals.
Second, actions intended to object to government
surveillance can reveal beliefs about the legitimacy of public
institutions. Researchers have shown that the perception of
unfair treatment at the hands of the police can lead to doubts
about the legitimacy of the police generally. Through their
actions, privacy protestors can raise questions about
governmental overreaching. The more widespread the privacy
protests, the more we might infer a serious lack of trust in a
particular public entity.

Third, privacy protests can demonstrate the shifting
boundaries of privacy norms. As surveillance capabilities
increase, so too do the possibilities for intrusions into
individual privacy. Many enhanced opportunities for
information gathering will be met with little resistance. This is
especially the case when the distribution of benefits is tied to
compliance. For instance, in 2011, the Indian government
began building a massive biometric database, known as
Aadhaar (“foundation”) that records iris and fingerprint data
so that individuals can receive government benefits through
nearly instant verification of their identity. The acceptance of
increased surveillance can also erode existing privacy norms.
In some instances, however, privacy protests have the capacity
to push privacy norms in the opposite direction, by forcing the
abandonment of certain surveillance techniques or by
producing regulatory changes. By forcing the state to
negotiate and compromise in some instances, privacy protests
reveal that privacy norms are the product of “game-like
processes.”
Put another way, privacy protests demonstrate an
important struggle over privacy norms, even if these protests
lack the coordination of a self-conscious movement. The social
significance of individual resistance was famously chronicled
by political scientist James Scott in his study of the inhabitants
of a small Malaysian village, Sedaka, in the 1970s. Scott lived
with and observed the villagers of Sedaka at a time of rapid
economic change and social conflict between rich Chinese
landowners and Malay peasants. Scott uses his example to
address the issue of why the poor do not openly revolt. The
evidence suggested to Scott that the peasants were neither
unaware of their situation nor passively accepting of it.
Indeed, the poor of Sedaka, while choosing not to engage in
open revolt against their perceived oppression at the hands of
wealthy landowners, did in fact succeed in multiple acts of
covert, private, and individual resistance.

These “weapons of the weak”—character assassination,
foot dragging, and petty theft, among others—constitute
important forms of protest, though they are not revolutionary
in any conventional sense. Scott’s analysis shows that the path
of individual resistance against perceived oppression will take
into account resource limitations as well as the likely success
of more radical action. Similarly, a person engaged in a privacy
protest is not only engaging in an idiosyncratic rant, but also
in an act of resistance. When repeated by multiple actors, such
protests have the potential to undermine the efforts of the
police. In some cases, these struggles hold the potential to
produce regulatory change.

B. Governmental Responses
A central claim in this Article is that ignoring the
differences between privacy protests and efforts to hide
criminal wrongdoing is a mistake, for privacy protests can hold
social value. If that is the case, as the previous sections have
argued, how should government respond?
At the outset, it should be clear that the elimination of
governmental surveillance is not only impracticable but
undesirable. Modern states need surveillance to govern. If
they are to distribute goods, understand the needs of their
citizens, and provide security, governments must collect some
amount of information from individuals.
At the same time, the refusal to recognize privacy
protests, particularly if they are numerous enough, can pose
potentially significant challenges for efficient governance.
From a practical standpoint, the government can likely tolerate
some number of privacy protests and still pursue its goals of
collecting information and identifying noncompliance and
wrongdoing. When a sufficient number of people refuse to
cooperate, however, they pose a threat to the ability of
government to exist, because the government is dependent on
individuals submitting to inspection, presenting their
identification, and behaving in apparently law-abiding ways.
Faced with a sufficient enough number of privacy
protests, the government might meet resistance with greater
coercive force on its own part to collect information. Or, the
government might provide incentives to individuals to
encourage greater voluntary compliance. The government
might also engage in responsive strategies to thwart those
who are themselves trying to thwart state surveillance.
These responses attempt to eliminate rather than
understand privacy protests, however. If privacy protests
represent legitimate struggles with the state over privacy
norms, then a government committed to a robust definition of
privacy should incorporate some of those views.

1. Legislative Responses
Privacy protests can play a role in prompting legislatures
to consider whether they have paid sufficient interest to
privacy concerns when law enforcement agencies adopt new
surveillance technologies. The introduction of domestic drones
is a good example. The 2012 Federal Aviation Administration
(“FAA”) reauthorization law ordered the agency to create a
regulatory framework for public safety agencies to fly
unmanned drones in American airspace by 2015. By the FAA’s
own estimates, some 30,000 drones operated by the
government, as well as by private entities, could be in
American airspace by 2020. In its initial response to privacy
concerns raised by civil liberties groups and by some members
of Congress, the FAA acknowledged that the use of unmanned
drones within the United States presented “privacy concerns”
while at the same time emphasizing its primary mission of
ensuring the safety and efficiency of the National Airspace
System. In response, some members of Congress have
proposed legislative protections. Representative Edward
Markey introduced the proposed Drone Aircraft Privacy and
Transparency Act in December 2012, which would require
specific privacy protections in drone use, such as presumed
warrants for the police, disclosure requirements, and data
collection minimization. State and local governments are also
debating what privacy protections might be required for
police-operated drones.
These privacy protections may not necessarily become
law. And even if some privacy legislation is enacted, it may
impose relatively weak controls on drone use by the police. In
this scenario, one can easily imagine protests by grassroots
and civil liberties organizations. Another relevant
consideration may be the existence of privacy protestors:
individuals unaffiliated with any particular group who engage
in acts of resistance. This might involve changing personal
habits or altering one’s home to block aerial surveillance.
Designer Adam Harvey, for example, has designed “antidrone” wear inspired by burqas and made of metallized fabric
designed to thwart thermal imaging surveillance.

2. Judicial Responses
Not all privacy protests target new expansions of
governmental surveillance capabilities. Many privacy protests
—the closed blind or the aversive walk—are low-tech
objections to “ordinary” police surveillance. As discussed
earlier, because the Supreme Court has not heavily regulated
the police in their exercise of discretion, police judgments
about suspicious behavior can easily—and erroneously—target
noncriminal privacy protests.
Instead of granting extreme deference, courts should
require police to be more exacting in their judgments about
suspicious behavior so that privacy protests are less likely to
be mistakenly targeted. In theory, both search warrant
applications and suppression hearings provide judges with the
opportunity to evaluate police assessments of suspicion.
Prosecutors also provide an independent level of review when
they assess cases for prosecution. Yet in practice, few
applications are denied, and successful motions to suppress
are the exception rather than the rule. Many commentators
attribute this deference to judicial attitudes that highly credit
police intuition.
Courts should enforce a more rigorous individualized
suspicion requirement. When courts require more of the police,
officers have greater incentives to engage in more thorough
investigations. A more rigorous approach to Fourth
Amendment suspicion might impose upon the police a duty to
investigate their initial intuitions and assumptions in some
cases. In many cases, a police officer can and should
investigate further to confirm or dispel an initial hunch.
Finally, courts should acknowledge that attempts to
evade police surveillance may be as indicative of privacy
protection as it is of criminal guilt. An encrypted file may hide
contraband, but it can just as easily protect legitimate privacy
concerns.

3. Police Training
Police departments can also do more to draw attention to
the differences between privacy protests and truly suspicious
activity indicative of crime. Police training can clarify that
suspicious activity may be truly innocent activity that requires
further investigation and confirmation. Even if the Fourth
Amendment does not curb police discretion in significant ways,
departments can encourage investigative techniques that call
for informed decision-making. Departments should encourage
officers to verify hunches to rule out innocent explanations.
Departments should also provide officers with data about the
relative successes and failures of specific strategies, such as
the use of profiles.
This attention to potentially innocent activity is
particularly important in mass surveillance programs that
collect large amounts of data to be sorted according to
discretionary criteria. While the simple collection of this
information may be value neutral, what is tagged as suspicious
depends on subjective definitions of unusual behavior. The
federal government’s Suspicious Activity Reporting (“SAR”)
initiative, which encourages local police departments to
identify and record suspicious activity that can be shared on a
nationwide computer network, relies on discretionary criteria
to sort innocent from suspicious activity. To the extent that
any suspicious activity is consistent with privacy protests,
police departments should minimize or avoid the targeting of
potentially innocent behavior.

In a more traditional policing context, departments can
influence individual officer behavior by changing incentives.
Many factors drive the decisions of individual patrol officers,
but chief among them are departmental cultures that
emphasize high numbers of stops or arrests—whether by
promoting a culture of aggressive policing or even by
operating informal quotas. A generation ago, sociologist
Jerome Skolnick observed that the “‘constant’ pressure to
appear efficient” explains why patrol officers feel compelled to
produce arrests and tickets. These pressures further
encourage the types of cognitive shortcuts that fail to
distinguish criminal behavior from the odd, the
nonconforming, and the privacy protest.

CONCLUSION
Privacy protests often appear no different from criminal
evasiveness, but they merit recognition as important sources
of resistance to the increasing capabilities of government
surveillance. These individual, ad hoc, and spontaneous
attempts to thwart police surveillance are as worthy of
attention as organized protests, public interest litigation, and
media criticism with the same objectives. Yet privacy protests
have largely escaped legal attention, in large part because
Fourth Amendment law makes little distinction between the
ordinary criminal’s evasions and the privacy protest. The
absence of a distinction raises the risk that the police will
unnecessarily target privacy protestors and blinds us to their
potential social value. Although not every privacy protest will
enhance our understanding of privacy, many will. That
understanding cannot take place until we recognize these acts
of resistance.

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