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Excerpted From: Isaiah Strong, Surveillance of Black Lives as Injury-in-fact, 122 Columbia Law Review 1019 (May, 2022) (249 Footnotes) (Full Document)

IsaiahStrongIn June 2016, a Facebook profile under the name “Bob Smith” messaged several accounts belonging to political activists in the Memphis area. Posing as a person of color, Bob Smith “liked” pages related to social justice--such as Black Lives Matter and Mid-South Peace and Justice--and “friended” several Black leaders and professionals in the Memphis area. In actuality, “Bob Smith” was an account created and managed by Sergeant Timothy Reynolds, a white detective in the Memphis Police Department's Office of Homeland Security. The account was but one component of a large surveillance network that flagged and collected information on Black activists and their associates. The Memphis Police Department shared the intelligence it collected with federal, city, and private-sector entities, including the U.S. DOJ; the Memphis Light, Gas and Water Division; and FedEx. Undercover and plainclothes police officers used the information to monitor innocuous events hosted by Black Memphians, including a Black-owned food truck festival and a memorial service for Darrius Stewart, a Black teenager killed by Memphis Police in 2015.

Memphis is just one example of an experience far too common in Black communities. Indeed, for Black Americans, mass surveillance predates globalization and digitization by centuries, reaching back to the transatlantic slave trade. Surveillance, particularly surveillance conducted by law enforcement, has important consequences, namely overcriminalization and suppressed political mobilization. These consequences illustrate how mass surveillance reifies Western racial hierarchies and acts as a tool in maintaining social control.

A groundswell of activists and community leaders are leading a movement to shift resources away from police and prisons, while legal scholars are beginning to imagine a radically different future for public safety and rehabilitation. Within the discourse on abolition, however, some have suggested replacing the role of prisons and police with a larger and more complex surveillance apparatus. Yet surveillance technology--in the hands of law enforcement or otherwise--may create and exacerbate the same problems generated by traditional surveillance and policing methods.

Surveillance of Black Americans is not simply a byproduct of the carceral state but a tool designed to facilitate the subjugation of Black people. Much attention has been devoted to the state's largely uninhibited ability to monitor the digital sphere and to disparities between the surveillance of Black and non-Black communities. Less attention has been devoted to the connection between rapidly expanding digital surveillance and its place in the history of racialized surveillance. In particular, what is missing is an approach that pulls from the legacy of racialized surveillance to catalyze new ideas regarding how to limit the state's digital surveillance capacity. Courts struggle to prescribe legal limits to the government's power to conduct digital surveillance. An approach grounded in a racial-historical framework may create solutions capable of overcoming the hurdles associated with challenging the scope and exercise of law enforcement's surveillance capacity. This Note homes in on a particular form of digital surveillance--social media surveillance--and focuses on a community particularly susceptible to the surveillance regime's most detrimental consequences: Black Americans.

This Note argues that contextualizing social media surveillance in a larger racial-historical framework--what this Note characterizes as the Critical Race Theory (CRT) lens--provides a path to address gaps in the legal framework concerning digital government surveillance. This framework proves useful not only by centering groups that bear the heaviest consequences of government surveillance, but also by providing a pathway to overcoming a recurring legal impediment to challenging government surveillance programs: judicial standing.

A plaintiff must possess standing to sue in federal court. In other words, the plaintiff must demonstrate that the defendant caused a concrete injury and establish that a judicial decree can provide redress. Standing requirements, however, have been unclear in the surveillance and data breach contexts, leaving some to wonder if anyone can meaningfully challenge the constitutionality of a government surveillance program before harm has been inflicted. The CRT approach helps resolve this ambiguity by demonstrating the likelihood that unchecked surveillance will inflict harm on Black communities, akin to how litigants have established standing in other contexts.

This Note deploys the CRT approach--integrating historical context into constitutional challenges--as a new way of addressing government surveillance through courts. Part I lays out the landscape of the social media surveillance regime and explicates current standing doctrine in the surveillance context. Part II discusses how social media surveillance fits into the larger narrative of racialized surveillance--framing social media surveillance as the latest iteration of a larger legacy--and outlines in greater detail two particular consequences Black communities face vis-à-vis government surveillance: overcriminalization and political suppression. It also shows how recent case law may leave the door open to challenging government surveillance through the courts. Part III lays out the CRT approach, drawing on recent cases exemplifying its ability to resolve problems associated with legal challenges to government surveillance. It concludes by elaborating on the future of surveillance imagined from a CRT ethic.

[. . .]

Communities of color, and Black communities in particular, have endured conditions of perpetual surveillance, oppression, and confinement throughout American history. A future free from the vestiges of past oppression requires dismantling apparatuses, such as the expansive surveillance capacity of law enforcement, that exist free of legal limits. The persistent watching, policing, and patrolling of Black youth, activists, and leaders, on the digital plane--in a world increasingly dependent on the digital sphere to facilitate political mobilization--creates a substantial likelihood of harm in myriad forms. These circumstances lay the groundwork for individuals and communities susceptible to these harms to demonstrate injury-in-fact and establish standing. Grounding modern approaches in historical context may resolve issues of standing vis-à-vis challenging government surveillance and clear a pathway not only to remedying the legal harm currently inflicted on Black communities, but for all potential victims of the harms of government surveillance.

J.D. Candidate 2022, Columbia Law School.

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