Excerpted From: Lisa Lucile Owens, Concentrated Surveillance Without Constitutional Privacy: Law, Inequality, and Public Housing, 34 Stanford Law and Policy Review 131 (2023) (177 Footnotes) (Full Document)


LisaLucileOwensThe increasing technological capacity for surveillance has been mirrored, in part, by changes in law: in Carpenter v. United States, the Supreme Court expanded individual privacy rights under the Fourth Amendment in order to protect a person's cell phone location data from unfettered use by the state. The decision, heralded at the time as a giant step forward in technological regulation, rested on a central trope that fits neatly into a chronology of ever-expanding technology. The Court emphasized in their holding that “new technologies” raise constitutional privacy protections in a way that “conventional” technologies do not. Hence, cell phone location and movement data, automatically collected and stored as “pings” by the towers of cell phone service providers, was protected and required a search warrant before use; other data, such as the automatic collection of location and movement of individuals recorded by surveillance cameras, was not.

This Article takes issue with the “new” versus “conventional” distinction deployed in Carpenter and notes the obvious and more subtle impact that the distinction has on social and economic inequality in the United States. It contributes to a rich sociolegal and doctrinal literature on surveillance gathering and its use by the state--which has emphasized the features of carceral logics, “e-carceration,” over-policing, stop-and-frisk policy, mass incarceration, “poverty governance,” and intersectionality order to draw out the overlooked effects of this distinction on vulnerable and marginalized populations. Importantly, the article adopts a social science methodology of direct interviews of the people affected by surveillance camera data collection, themselves. Thirty-one interviewees living in public housing in New York City offer their perspective on life under surveillance by omnipresent cameras located in the myriad communal spaces in their buildings-- entrances, doorways, elevators, and playgrounds. Their assessment allows a complex picture of surveillance--which includes a tension between safety and privacy concerns--to emerge. The focus of this Article is on the public housing residents who must contend with poverty, housing precarity, and concentrated governmental surveillance. Through an analysis of original social science data, this Article explores how surveillance camera data disrupts a shelter of privacy for residents of public housing subject to the tracking of their location and movement data, similar to the very data collection which the Court in Carpenter is concerned with. This Article will argue that not only is location and movement data collected by surveillance cameras in public housing analogous to location and movement data collected by “newer” technologies, but that police access to such data should be considered a search requiring a warrant based on probable cause. Furthermore, this Article provides an analysis of the impact of this distinction, which reveals a mechanism of the entrenchment of social and economic inequality, showing that even rights expansion can promote inequality when it does not contemplate diversity in experience and context.

The doctrinal protections of the Fourth Amendment have evolved far slower than technology has advanced. Nonetheless, with its decision in Carpenter, a majority of the Supreme Court has indicated a readiness to adapt Fourth Amendment jurisprudence to technological changes. Such modernizing adaptation is driven by the depth and breadth of changes in technology which threaten a meaningful shelter of privacy as they enhance the capabilities of government to conduct both deep-targeting and dragnet data collection. These evolving methods have constantly tested the warrant requirement as a necessary component of any presumptively reasonable search. A turning point in this adaptive process came in the seminal decision Katz v. United States when the Court added the subjective-objective test of legitimate expectation of privacy to the traditional test that protected privacy as anchored in places and tangible objects. If it could be proved that a reasonable person would legitimately expect privacy in relation to certain data, such as no eavesdropping on a call from a telephone booth, the Fourth Amendment's requirement of a warrant before a “search and seizure” was implicated.

The speed of technological development, however, quickly placed the Court in a position to be talking, as it does in Carpenter, in terms of drawing a distinction between conventional and new technologies. Prior to the Supreme Court's decision in Carpenter, much of the data gathered by third parties was not protected by the Fourth Amendment, and so the decision does substantively extend rights. However, even given the potential of a revamping of the Fourth Amendment to enhance protection of the most vulnerable, an (as this Article will argue) arbitrary division between new and conventional technology instead further divides protections along a line which reproduces conditions that drive social and economic inequality.

While this Article attempts to unsettle the doctrinal distinction used in Carpenter, its broader aim is to contribute to the understanding of the causes of the resilience and growth of inequality in the United States. Scholarship, in law as well as social science, has endeavored to map the complex causation of growing inequality, identifying the ways in which the judicial system all the way up to the Supreme Court generally interpret matters in ways that promote social and economic inequality. Although the decision in Carpenter, did not, on its face, explicitly disfavor economically and socially vulnerable populations, this Article shows that the doctrine set forth in Carpenter has precisely that effect. The implications for these findings are important in terms of how we think about the ways law constitutes, obscures, and entrenches social and economic inequality even as it seeks to be neutral or claims to be doing the opposite.

The Article proceeds in three Parts. In Part I, the Article provides an introduction to the use of surveillance cameras in public housing. The data discussed helps to deepen and broaden our understanding of the everyday lives of residents whose movements are often recorded in several locations as they move around their homes. By grounding and contextualizing the data and its contradictions through the analysis of public housing residents themselves, this Part seeks to illuminate the meaning of a meaningful “shelter of privacy” which is given primacy in interpretations of the Fourth Amendment. In Part II, the Article analyzes the holding of Carpenter in terms of the distinction between new technology and conventional technology. It explores the reasoning underlying the concept of “new technology,” and examines in particular whether location and movement data collected by surveillance cameras in public housing is akin to that collected by the cell phone data pings at issue in Carpenter. Lower court cases involving surveillance camera data, issued since the Supreme Court's embrace of new technology regulation, are also examined. In Part III, the Article incorporates an intersectional approach to further explore the implications and mechanisms of the entrenchment of social and economic inequality, specifically in terms of whether surveillance camera video footage ought to be considered a search under the Fourth Amendment and thus ought to require a warrant based on probable cause.

[. . .]

In Carpenter, the Court's use of the distinction between new and conventional technologies to anchor its doctrinal limitation of the protections it granted maps onto housing and employment precarity, family instability, over-policing, and contributes to mass incarceration factors. In addition to individual “suspects” which police may surveil, left out of the scope of the protections Carpenter afforded were the vulnerable populations who live in public housing and impoverished urban neighborhoods. That is, unless their location and movement is being tracked by their cellular phones location as opposed to through the government-installed cameras.

Through analysis of social scientific data gathered in New York City public housing alongside an autopsy of the distinction between new and conventional technology made in the Supreme Court's decision in Carpenter, this Article adds to the body of literature on the ways in which law contributes to the causes of social and economic inequality. Interviews of residents and observation of residential factors in public housing reveal the impact of surveillance cameras which disrupt the experience of a shelter of privacy. Illustrating the arbitrariness of the distinction between conventional and new data collection technologies, the Article shows how the application of law, and even laws and policies which intend to confer rights or benefits, are causally related, in complex ways, to entrenched social and economic inequality.

The decision in Carpenter failed to seize the opportunity to protect vulnerable citizens subject to targeted or concentrated surveillance, meaning that those such as the residents of public housing discussed here experience lesser protection under the law, with far-reaching potential for consequences.

Public housing residents ought to be entitled to a shelter of privacy as much as everyone who carries a cell phone following the Carpenter decision. Data collection about public housing residents and their guests through camera surveillance is viewed as a cost-effective mode of policing them; however, the use of surveillance produces consequences for residents which are detrimental to their prospects of breaking from the lack of opportunities and resources that lead them and their families to public housing. Violence and personal risk within urban environments are of significant personal and governmental concern, and maintaining safe spaces is in the public interest. Nevertheless, the usage of surveillance within public housing presents significant added risks and decreased privacy without increasing the experience of personal safety. These risks are compounded when police, public housing administrators, and other state actors are authorized to access and use the data collected by surveillance cameras without affording residents the guarantees of the Fourth Amendment--again, unless they are being tracked through their cellular telephones. Furthermore, a complex picture of increasing income disparity, sky-rocketing real estate prices and housing instability in many urban areas, and a withering social safety net mean that individuals who rely on public housing have little power or recourse to challenge the coercive nature of a constitutional free-zone of surveillance within their residential space.

Appendix I. A Note on Methodology & Site Context

Social science data and methodologies are widely used by legal academics, attorneys, and lawmakers in understanding, creating and interpreting the law. The principal research tool from which the data in this Article draws from is thirty-one interviews conducted with New York City public housing residents, as well as ethnographic observations of surveillance objects in public housing taken over an approximately six-month period. The data is used to explore social processes undertaken by individuals in relation to surveillance structures and to interrogate the use of surveillance in public housing.

Small qualitative social science data sets typically state the characteristics and shortcomings of their data as a matter of intellectual honesty. All data sets have flaws, whether qualitative, quantitative, large or small, and the data set tapped on for this article is no different. Interviewees ranged in age from 18 to 60, with the age of the sample averaging at 39. Twelve of the residents identified as men, and nineteen as women, with no residents interviewed identifying as transgender or non-binary. Approximately 90% of residents interviewed were unmarried (single or divorced Residents also were dispersed across the boroughs of New York City, with five interviewees from Manhattan, five from Queens, twelve from Brooklyn, and nine from the Bronx. There were no interviews conducted with residents from Staten Island. The residents I interviewed primarily self-identified as Black or African American (twenty-three residents Additionally, three residents identified as White, two as Hispanic, one as Black and Hispanic, one as biracial, and one as Native American. Residents of traditional public housing in New York City overwhelmingly identify as Black (43.75%) or Hispanic (44.53% By comparison, 5.2% identify as White, 5.48% as Asian, and 1.03% as other. Over-sampling of Black and White residents in terms of the more general racial identification of residents and under-sampling of Hispanic residents was not intentional. I speculate that a lack of Hispanic/Latinx respondents may be related to the recruitment methods themselves and/or English language barriers. The organizations I worked with for recruitment may work with, or be familiar to, primarily Black residents. Also, the advertisements recruiting participants were in English only, which may have contributed to a lack of Spanish-speaking respondents within the Latinx public housing community.

All interviews were conducted personally and in-person in English, and in a private or semi-private space. Approximately (50%) of the interviewee sample was recruited through the use of online advertisements. The remainder of the sample was recruited through non-profit organization contacts who work with public housing residents in various legal and social capacities and through snowball sampling. Both samples were roughly similar in terms of demographic, geographic, and experiential characteristics. The typical interview lasted approximately one hour, with the longest interviews approaching two hours and the shortest concluding at around forty-five minutes. Most of the interview time was spent discussing particularities of life in public housing and relevant life experiences.

Consent was discussed with all interviewees and a consent form was signed. With explicit permission, the interviews were recorded. If the interviewee did not wish to have the interview recorded, I took notes. Recordings were transcribed and then entered, along with notes, into the qualitative research coding software “dedoose,” coded, and analyzed. I first coded information according to themes that I noted throughout the interview process and in which I was interested in writing about. In later analysis of the data, I explored additional themes and added new codes as patterns emerged in the data. The quotations featured here are representative of themes found in multiple interviews. Pseudonyms, chosen from a list of “related” names generated through a baby naming website that aggregates name data, have been given to participants in order to protect their privacy.

Ethnographic observations of surveillance objects took place over a six-month period. These observations included making site visits to various public housing communities across the five boroughs of New York City. During this time, I visited approximately thirty public housing developments, including all of the developments from which I interviewed residents. During these visits I noted the presence of surveillance objects, their appearance and possible function. These observations were strictly of surveillance objects visible to public view. These observations did not include “watching” residents or entering more private spaces which were off-limits to me as a non-resident.

At the time the interviews and observations were completed, marijuana was still illegal in New York City, though this changed in March 2021. Many residents discussed marijuana use, and several expressly differentiated between the use of marijuana and the use of narcotic drugs in terms of surveillance and risk. In the findings and discussions, where necessary, I note that marijuana was at that time illegal. Because marijuana is no longer illegal, it may change the impact or interpretation of certain statements in important ways.

At the time this study was conducted, from the years 2016 to 2017, the stop-and-frisk era of policing had recently ended, and the Black Lives Matter movement in response to police violence was gaining traction. The deployment of surveillance filled the gap left by the withdrawal from police forces from patrols and stops, and this deployment was particularly visible in public housing, in stark contrast to surrounding areas. Going into the field, I expected that residents would disfavor the surveillance objects, including lighting and cameras, that were so starkly associated with policing. However, most residents embraced surveillance methods of policing, even while expressing discontent with them. Exploring this dichotomy sheds light on the nature and extent of the social and economic inequality entrenching aspects of the distinction between new and conventional technologies made in Carpenter in terms of the realization of benefits and trade-offs implicit to the use of surveillance.

Visiting Assistant Professor, University of Massachusetts School of Law.