Excerpted From: Chaz Arnett, Black Lives Monitored, 69 UCLA Law Review 1384 (September, 2023) (282 Footnotes) (Full Document)


ChazArnettOn the morning of August 7, 2020, Derrick Ingram, a Black cofounder of the social activist group “Warriors in the Garden,” awoke to find that dozens of police officers had descended on his New York City apartment. Adrone hovered outside of his apartment window, and he believed that his frantic phone calls for help were being intercepted and blocked by law enforcement. He specifically recalled the redlaser beam that passed in front of his face in the living room, trained there by one of the armed officers posted on the other side of the courtyard, and thinking that he was going to be shot and killed. He started livestreaming what wash appening. What was Ingram's offense? He participated in a protest in Times Square where he chanted into a megaphone while police officers attempted to barricade a large group of protestors. Ingram was charged with assaulting a police officer when a patrolwoman claimed that he spoke in the bullhorn near her ear, causing temporary hearing loss. It was a case that ultimately would be dismissed. But Ingram was not arrested at the protest that day. Law enforcement later tracked him down using facial recognition technology with video from that protest, which led them to his Instagram profile.

This intensification of surveillance using advanced technologies and the corresponding militarized response are indicative of the law enforcement activity at the local, state, and federal level that took place in the wake of George Floyd's murder and the global uprising. That moment and the ensuing years after have become known as a long overdue period of racial reckoning. This racial reckoning has raised tough questions about racial equality and exposed the disproportionate harms of policing and contact with the criminal legal system. Legal scholars have only now just begun wrestling with the significant impact and legacy of this defining moment on criminal policy, jurisprudence, and legal theory. Examining the reckoning is important for interrogating the relationship between social protest and big data policing. It is also necessary for highlighting the profound sociopolitical implications for an increasingly powerful and voracious policing surveillance apparatus, built upon a foundation of institutionalized discriminatory policing. In previous work I have made historical connections between discriminatory policing and racialized surveillance practices, noting that “race- and class-targeted policing does more than generate animosity or legitimacy gaps between law enforcement and Black communities, it also actively facilitates ... under development and subordination ...” surveillance is important in the context of the racial reckoning because it acts to determine who is within and without the body politic--limiting the free exercise of rights along racial lines and signaling what social causes are just.

The Fourth Amendment is widely understood as providing some protections against police surveillance. Yet, for decades, criminal law scholars have highlighted a disconnect between these professed protections and the reality of contemporary policing. As Professor Tracey Maclin has noted, “The Fourth Amendment protects rights that Americans like to brag about in the abstract. Too many, however, are reluctant to enforce these rights in the real world.” This disconnect is even more pronounced in the instance of policing Black people, communities, and causes. More recently, scholars have argued that conservative conceptions and applications of unreasonable search and seizure standards have weakened the Fourth Amendment's protections against unconstitutional policing of protests. This Article contributes to this body of literature by examining the rapidly changing technological dimensions of police surveillance of social protest, using the Black Lives Matter demonstrations as the focal point. It argues that Fourth Amendment law and norms are unresponsive to racialized surveillance and further police efforts to intimidate, delegitimize, and frustrate protest movements for racial justice. The Article suggests that in addition to a racial reckoning with policing and prisons, there must be a racial reckoning with criminal legal jurisprudence which 1) challenges historically limited conceptions of privacy, 2) interprets the Fourth Amendment to protect against new modes of policing in an increasingly digitally surveilled and automated society, and 3) recognizes the growing overlap between government and private action, where big data processes take precedence in the emerging datafied state. Ultimately, the Article stresses that such a reckoning cannot be achieved without complementary transformations in law and social policy guided by a racial justice lens informed by Critical Digital Studies. A critical race, tech, and law approach is not only recommended, but also necessary to navigate this fraught terrain.

This Article proceeds in three parts. Part I highlights how surveillance technologies were used in response to public demonstrations against police violence during the racial reckoning and responds to important questions about the selective use of these tactics. Part II details the barriers faced by advocates seeking to use Fourth Amendment protections as avenues for limiting police monitoring. It highlights how colorblind logics in both law and technology norms work together to dilute channels of resistance and reform. Part III of the Article explores what some of these barriers and challenges may mean for the future of racial justice movements like Black Lives Matter and suggests strategies for furthering such efforts in the face of extensive tech facilitated surveillance.

[. . .]

It did not take long for the street murals brightly painted in vivid colors in city centers during the summer of 2020 to fade. The bold art that spelled “Black Lives Matter” along prominent boulevards has all but vanished in places like Kansas City, Charlotte, Brooklyn, and Tulsa. The erasure of these symbolic gestures has corresponded with what some scholars have referred to as “Whitelash,” a fierce and swift response by White Americans to hold onto power when faced with greater demands for diversity and growing calls for racial equity. Only a few years removed from George Floyd's killing, much of the hope and promise of the moment has grown stale. While the call to move more resources from policing to social services resulted in some temporary shifts in local budgets, many major cities have returned to increasing policing budgets at even higher rates. For example, law enforcement funding in Los Angeles has increased by 250 million since 2019. Furthermore, the number of people killed by police remains relatively steady. During the first seven months of 2022, police killed more people than they have in any other recorded year. Even efforts to rein in police surveillance measures have proved fleeting. At the height of the racial reckoning in 2020, the city of New Orleans banned the use of facial recognition software. Yet, by the summer of 2022, the city council voted to lift the ban while preparing for the rollout of a more expansive surveillance network across the city. Although it would be misguided to claim that there were no meaningful gains as a result of the uprising, it is clear that continual relief from even the most basic grievances levied, during the largest protest movement witnessed in a generation, is not a guarantee.

With a problem as oppressive and old as state sanctioned surveillance and disruption of racial justice movements, there is no magic bullet solution. No single, clever reimagining of legal doctrine or crafty policy recommendation will alone provide a neat, comforting answer. I do not pretend to provide one here. There is still much work to be done in examining the ways that police surveillance practices work to both render Blackness hyper visible and Black life invisible and valueless, as a necessity for discipline and control. And it is that aim that must be continually confronted. Advocates cannot be lured and tempted with quick technocratic solutions and shortsighted litigation and reform efforts that trade one form of surveillance for another or place faith in law enforcement and private industry to do what is right. Each step proposed and taken should be made with an eye toward ultimately dismantling systems that identify justice activists as dangerous provocateurs and racial equity as a threat. Such thoughtful steps will not guarantee perfect outcomes for shielding racial justice movements from the types of surveillance that undermine efforts to create a better country for us all, but they will assist in generating stronger defenses and advocacy for the many battles ahead.

Professor of Law, University of Maryland, Francis King Carey School of Law.