Your household devices are tracking you—but who else is watching?

Episode Notes

Transcript

Lee Rawles:

Welcome to the Modern Law Library. I’m your host, Lee Rawles, with a returning guest, Andrew Guthrie Ferguson, author of the new book, Your Data Will Be Used Against You: Policing in the Age of Self Surveillance. Andrew, thanks so much for joining us again.

Andrew Ferguson:

It’s always a pleasure to be with you. Thank you for inviting me.

Lee Rawles:

So back in 2017, you wrote a book called The Rise of Big Data Policing. It’s about nine years later for the rest of us. What have been the biggest changes that kind of drove you to write your data will be used against you?

Andrew Ferguson:

Well, I think we’ve seen the warning signs that I talked about and the rise of big data policing come to fruition. We have risen and we are now supercharging those cameras that have been around with video analytics and AI. We are putting sensors on our street corners. We have automated license plate readers that can read millions of license plates a time and connect it to other data sources to identify who the driver is and their social networks. And we’ve seen this growth of, I would say, sort of democratically mediated cell surveillance. This is us putting technologies on our streets to watch ourselves for public safety, for policing, but also can be used for monitoring protests or where people are going in other ways. And so I think we’ve seen a growth and acceleration. And unfortunately, we have not seen an equivalent response in our law or our regulations or even our sort of constitutional rights to match that technology.

Lee Rawles:

Well, listeners, you’re hearing this in March, but Andrew and I are talking in February, and I think it was last week was the SuperBowl. Andrew, did you happen to see a particular Ring ad from the SuperBowl?

Andrew Ferguson:

Yeah, everyone’s talking about how Ring can find your lost puppy by turning on the cameras in your neighborhood and searching using pattern recognition to identify the puppy, which again, sounds wonderful. Puppies and Super Bowls do really well. The danger, of course, is that that kind of crowdsource surveillance can arguably find anything that Ring wants to find, and that is a new danger. The other thing that Ring didn’t mention is that lots of camera systems can be connected to police systems. So we have a growth, what’s called the Real Time Crime Center in many metropolitan areas, which is essentially a centralized place where cameras can come together and be streamed. Picture your CCTV cameras, cameras in 7-Elevens and Walmarts and all those things. But also, if you choose, you can link your RingDoor bell camera. And so we are building this network of surveillance. And on occasion, if your puppy is lost, you’d want to find it.

But I think we might want to think twice about how we use and grow these technologies without a whole lot of foresight and regulation.

Lee Rawles:

There are other ways to find your puppy.

Andrew Ferguson:

You can chip them. We have a one-year-old puppy and she’s chipped and you can put an AirTag on. Again, self-surveillance is not a bad thing. There are reasons why people put Ring cameras on their doorbell. And the book isn’t about judging those people. It makes sense. There’s a reason why there’s a billion dollar industry selling surveillance as a service, but there are also questions about how that impacts privacy, civil rights. You are really actually just surveilling yourself 99.9% of the time and your family members, where they’re going and who you’re with. And we just have to start interrogating that choice to sort of buy into this consumer self-surveillance that is very much an evidentiary creation machine that can be used by police and prosecutors in criminal cases and other kind of cases.

Lee Rawles:

And you mentioned earlier that although there’s been this huge jump in technology and in consumer adoption of the technology, it does not seem like our courts or legislators have gotten in there and started updating our laws or procedures to address that. What would you say are some of the top concerns that you alert people to when it comes to the gaps in how our courts treat this kind of information and what we can do about it?

Andrew Ferguson:

I think our courts are still operating in an analog age. And in the book, I try to give some ideas of how we might update that to a digital age. It’s always striking. I teach a criminal procedure, I’m a law professor, and the cases that sort of are our foundational Fourth Amendment framework, we have Cats in 1967, which is about a phone booth where they put a reel-to-reel tape recorder on top of the phone booth. I literally taped it on the tape recorder and had to go up there and press play and press and turn it off. And you have to explain to students what a payphone is and how we used to have payphones. And then you talk about microfiche and the third party doctrine is in part based on bank microfiche and students like, “What’s microfiche?” This is our law that we are now adapting to a world of censors everywhere, AI, quantum computing.

There’s a mismatch there. And so the book tries to give some ideas of how judges, if they wish to, could update the Fourth Amendment and respond to some of the dangers, both around expectations of privacy and other theories. I also have arguments about how legislators could respond. Many of these problems are usually solved by legislators that see this sort of balance that needs to be rebalanced in terms of privacy and surveillance and police needs. And we have hard conversations about how to allow police to have access on occasion, but also not have this power abused for, say, political reasons or things that might invade the First Amendment, religious reasons, any of those things that requires some deeper thought.

Lee Rawles:

Well, I definitely want to get into the details of those later in our discussion, but first, let’s talk about some of the ways that people may be collecting data about themselves and they aren’t even really aware of it or they don’t think about it as a surveillance of themselves. Ring doorbells, I think most people are like, “Oh yeah, it’s recording and it sees who comes to my door.” But you bring up so many different cases with so many different devices. One of my favorites from several years ago was the man wearing, it was a Fitbit or some kind of smartwatch that was tracking his heartbeat, and that ended up being brought in as evidence into, I think it was an arson case. But what are some of the things that really kind of surprise or shock people or students when you bring them up?

Andrew Ferguson:

Sure. So I do want to talk about that case, but just the general point of this book is that all of our smart devices in our smart homes, our smart cars, almost every modern car is on a smart car, our smart watches, our smart medical devices are all surveillance devices. That’s actually what you’re buying. You’re buying a means to surveil yourself, and maybe there’s a good reason for doing that for consumer or medical reasons, but the downside is that that data one created is at best a worn away from being used against you. And the smart heartbeat pacemaker is such a great case because I think we can all agree that the idea that a pacemaker that is digitally tracking your heart and keeping you healthy is a good thing.That’s the innovation that we want in the modern age. And the fact that that digital heartbeat is also giving that data to your doctor is an additional benefit.

So your doctor can monitor if there’s something going on. And that is absolutely something that I think we can all agree is a positive. But in that case that we’re talking about, detectives went to the doctor’s office and got the readout of the smart heart pacemaker to disprove this guy’s story. It was basically an arson fraud case or an insurance fraud case based on arson. And they basically showed that his story of running around and saving all the stuff from the arson could be disproved by his heartbeat that really wasn’t beating the way it would’ve been if you were running around trying to avoid a fire. So not bad evidence for the government, but the idea that your own heartbeat could be used against you in a court of law, I think raises the concern about maybe we should have protections about some of our data because the reality that this book shows all too well is that there is no data too private that can’t be obtained by police, your digital diary, your smart bed, your period app, your medical devices, your deepest secrets that you whisper that Alexa’s overhearing or whatever it is in your bedroom.

With a warrant, the government can get any data and that balance may need to be rethought. And so what the book does is it goes through how our physical environment has changed, our smart homes, our smart bodies, our smart things, and then ask questions about both the benefits to law enforcement. And the book is filled with stories about how people who did a crime got caught by their data, but also how that data can be misused. If you have a government that wants to sort of go after its political enemies, well, we have the data created to do that. If you want to go find out, if you left your home past your ring doorbell with a no king’s protest sign, well, guess what? It might be recorded and it might be used against you. And like in a world where things have gotten pretty politicized in terms of our prosecution, all of this data is available and can be weaponized against

Lee Rawles:

You. And in the book, you also bring up plenty of stories where there is an association that is easily proven, but that does not mean the person committed the crime. There was a young man who, through his social media accounts, it was easy to see that he was friends with some other young men who were, we’ll just say up to some criminal shenanigans. However, even though there was this data linking him to them, that didn’t mean that he committed the crime, yet he was held in prison for, I can’t remember the number, but it was upsetting. It was over a year. So I think that people also need to think about not just, “Well, I don’t commit crimes, so it’s fine.” But what stories can be told using data points, even if it’s not showing the full truth?

Andrew Ferguson:

The danger, I think we all know in the back of our head that our social media use is obviously not completely private because the whole point is it’s social. I’m not sure we fully understand how police have recognized that social media is a wonderful way of surveilling people, especially young people who are sort of less aware about the needs for privacy. And so if you’re a young person growing up, most of your life is mediated through various social media videos and connections and lots of young teenagers do lots of kind of foolish things, but now it’s all recorded. And so if you have a detective watching what people are doing, it’s pretty easy to create associational guilt because maybe someone did something stupid or a fight was a part of a gang, but you’re hanging out with them. And then people growing up in neighborhoods, the connections between gangs and friendships and cousins is pretty loose.

And then in the book, I tell a story about how a young man whose brother was involved in some criminal activity was arrested along with a whole bunch of other people because it was so easy to put them in these videos that they were making, not of criminal acts, but just being idiot kids who were thinking it’s cool to look tough and do stupid things. And so it’s very hard, your social media is potential evidence and you are sort of trusting your least responsible friend to do the right thing. And that may not be, you can all think about your least responsible friend, that might not be the thing you want to do. And again, from police, they recognize that much of the world that they are watching on the streets is sort of also taking place in the virtual world. Gang fights start virtually with people threatening each other online, and so they want to pay attention to that.

And they’re doing it for deterrent reasons to hope it doesn’t spill out into the real world, but it also means that your data is going to be used against you. And the whole book is to just try to get people to think hard about that seduction of digital self-surveillance. There is a reason why we use social media. It’s not bad. Everyone uses it, I use it, but the fact that it can be used against you is something we need to think hard about.

Lee Rawles:

Well, we’re going to take a quick break to hear from our advertisers. When we return, we’ll be talking more about your data will be used against you, policing in the age of self-surveillance. Welcome back to the Modern Law Library. I am still here with Andrew Guthrie Ferguson. And Andrew, you brought up young people and I feel like I was born in 1980 and my childhood was almost entirely unsurveilled. I would leave the house on my bike and I guess my parents just sort of hoped for the best. And if I didn’t come home when it was dark, they would certainly go out and look for me. But kids today, there are tracking apps that their families use, they track each other. There’s this idea of like sharing your location with a whole circle of friends that feels totally alien to me. And I do feel like there is a generational change or shift that’s happened.

And I’m curious if when you talk to your law students who are more of that generation, do they have less concern than you do about this potential or do they also see the danger?

Andrew Ferguson:

I think they see the danger, but they also are used to sharing and they kind of, I think from a almost more privileged way, feel like maybe their data won’t be used against them. But what I’ll say is that over the last couple of years, that conversation, which I actually have in class every year when I teach a seminar on policing surveillance, has shifted. At first it shifted around the abortion debate, recognizing that people’s activities and medical choices could be surveilled in states where people are criminalizing abortion and the recognition that that Google search of abortion services or your car traveling out of state to a clinic could be used against you, I think changed the debate a bit. And I think it’s changed even more now where we watch sort of anti-government protests on the streets also be the subject of surveillance and recognizing that if you go out and are protesting things that you think are wrong, that all of your digital trails, your emails, your social networks that are planning the protests can be used against you.

I think that actually has changed it a bit, where people are seeing the dangers in part because that kind of aperture of surveillance has broadened to cover more people. I think if you asked some of the people who were mentioned in the book who come from lower income or communities of color, they might have said, “Well, we’ve always been the subjects of surveillance. And so what you are talking about, your data will be used against you is sort of understood. We know the cameras are pointed in our neighborhood. We know the detectives are watching our social media, but I think what we’re seeing now in this sort of interesting political world is that who the targets are has broadened and maybe there’ll be more of a willingness to see the dangers because it applies to more people. It’s a weird thing to say, but I think it’s true that we are seeing more people recognize their own sort of digital exposure in a way they’re not comfortable with.

And maybe that will create a little bit of bipartisan push to do something about all this data that’s out there in an unregulated way. And

Lee Rawles:

You make the point in the book, privacy is nonpartisan or it used to be, and I think in many cases still is, people from all political persuasions can be talked into wanting to protect privacy. I do see, I have lived in Chicago and in Madison, Wisconsin the past few years, and in Chicago, I watched the debates over shot spotter.

Andrew Ferguson:

It feels

Lee Rawles:

Like a tongue twister every time I say it shot spot. Now it’s called

Andrew Ferguson:

Sound thinking, but yes,

Lee Rawles:

It was

Andrew Ferguson:

ShotSpotter. ShotSpotter was a technology. They changed their name to sound thinking, which is the company.

Lee Rawles:

And Chicago as a city had this debate over, well, we put this into some neighborhoods. Is it worth the money? Should we keep doing this? And then more recently in Madison, there are a lot of flock cameras and people are showing up at city council, meaning saying, let’s take these down. And there have been some cameras that have been removed. So I do wonder if we’re going to see a pushback. It might be the circles I travel in, but the response I was seeing on my social media and within my friend group to that ring search party, find a dog ad was horror.

Andrew Ferguson:

And or shock. So there’s two points to that. The first is the sort of, is there a potential bipartisan move here? And the second is, what do we do in this world where these technologies are encroaching in different cities with a response? And first is the bipartisan part. A couple years ago, if you were a big Second Amendment booster, you really cared about gun rights, you’re really worried that the federal government was going to come into your house and like take away your guns. You were against databases of gun owners because you were worried that this power could be used against you. Today with automated license plate readers like FloC, if you put that outside a gun range or you put that outside a gun show, well, you can find all the people who have guns without having to have a database. You literally just created it by the inference of who would go there or who bought ammunition or wherever it is.

And so if you’re worried about that kind of surveillance, you should be worried about the technologies that we’re building without regulations to protect against constitutionally protected rights. Ironically enough, Donald Trump’s data was used against him, like his texts and everything. If anyone could see the harm of a government using a text, I think the Republicans in today’s world might have said that the Biden administration was doing it. And obviously we’re seeing the Trump administration doing it to political figures as well. And so in some ways, because data will be weaponized, depending on who’s in power, a response to the people who could do something by people, maybe we should have some laws or regulations or protections about how this data could be used against you in a criminal matter. In terms of community protest/pushback, which we’re seeing in Chicago and Madison and other places, the question is like, do we need this self-service?

We as a society are being sold the promise that self-surveillance equals safety, but we haven’t really seen that that is necessarily true. Flock cameras are capturing 99.9% of the people captured are completely innocent, just going about their business, right? It might find one stolen car every once in a while, and that’s not a bad thing, but the question is, do you think on balance, capturing everyone’s license plate and all of their patterns and where they’re going and by inference of what they’re doing is worth the time you might catch the one stolen car. And that’s an open question. That’s what we should be debating. Right now, we’re just sort of letting the technology companies sort of push their technologies into our society without that debate. And I think that I’m glad the communities in Chicago and Madison and other places are forcing a debate, but I don’t think we’ve had it nationally.

And the book is basically written to sort of spark that national debate about, are we okay building a network of cell surveillance that can be used against you on kind of the whim of the government and/or should we have better protections?

Lee Rawles:

I want to take a quick little tangent to talk about body cameras as warned by police, because it’s something we touched on back in 2017 with big data policing. And it was seen as not a cure all, but something that was going to make a big difference. The theory was if police are wearing body cameras that are recording their actions at all times, this will prevent violence against members of the public. This will be good backing for police officers to show that they did nothing wrong. And I would say, I don’t think that it’s been any sort of cure all. I’ve been curious to hear what your position is on police body cameras and if you have any thoughts about their utility going forward.

Andrew Ferguson:

So I think big picture, a technological tool will not solve like a social and cultural problem like police abuse and the abuse of power. And so watching it will not change what happens. I think the flaw of this sort of move toward transparency was that the entities that had control over the digital footage that kept the information were the police and that some of the critiques of police body cameras and that it’s lack of … It both didn’t stop instances of police use of force and police brutality, and it didn’t have the deterrent effect that we thought. And part of the reason for that is that the people who controlled the data were the police. And I think you could have solved some of that problem if you actually had created essentially an independent third party that held the data. Professor Barry Friedman at NYU has this interesting article out right now about data trust.

One way you could have solved this problem is you essentially have a third party who will give the police access when they need it, but also would give accountability forces access if they needed it. And what has happened is we’ve sort of been able to use the police body cameras as a new mechanism of surveillance as opposed to necessarily checking them. I do think there is some silver lining. I just read an article with Joanna Schwartz at UCLA where we look at how if you do an AI overlay on the police body camera, like a company like Trulio sells this AI, where you can basically identify problematic policing in a way that you couldn’t before. The AI essentially is watching every audio of the police body camera and can determine if there was a problem, use of force, bad language, profanity, whatever it would be, and it gets sent to supervisors who can then respond.

And so there may be another generation of how we can build out accountability into policing using body cameras, but I think the general sense is it didn’t do what we thought it would do and it did not respond to the deeper problem, which is why we’ve invested so much money on it.

Lee Rawles:

Okay. Well, we’re going to take another break to hear from our advertisers. When we come back, we’ll talk about solutions for this problem. Welcome back to the Modern Law Library. I’m Lee Rawles here with Andrew Guthrie Ferguson, author of Your Data Will Be Used Against You: Policing in the Age of Self Surveillance. Well, as time has come, I promise we were going to talk about ways that the judiciary, the legislature, and individual people can fight back against this. And I would love to start with legislatively, you bring up something you call Wall, Wire Tap Act like Law. Tell us about Wall and your ideas for it.

Andrew Ferguson:

Sure. So since the late ’60s, we have given the government the power to put a microphone in your house and listen to what’s going on. That is about as invasive a surveillance power as one could imagine. It’s a wiretap. And the wiretap is only allowed if you go through what’s called the Wiretap Act procedures. It can only be used for more serious crimes. It has to have a judicial approval and you go back to the judge afterwards. There are rules about minimizing the other conversations. So you can imagine a house, there’s like the conversations you want of like the mob boss talking, but not the teenage kids also talking. And there is a requirement essentially that you’ve done other things before you resort to this kind of drastic measure of doing it. And we have been okay with that. I mean, it does sound like an incredibly potentially abusive technology, and yet we have lived okay with a balance of when law enforcement needs it, not invading, not abusing it in certain ways, because we established a federal law called the Wiretap Act, title three, that allows this kind of balance.

And what I propose in the book is we should start thinking about similar parallel things for these new technologies. So take facial recognition, right? So we right now have essentially, with the exception of a handful of local jurisdictions, we have essentially an unregulated rule about facial recognition. So police can get a photo from a CCTV camera or a Ring camera and try to match it through their databases without any rules or regulations. And what the book proposed as well, why not go through a wiretap act like procedure? You have a crime, you think you have a suspect, go get a judge to sign off on this process saying you want to use it and go match it. And if you’re right, you’re right. If you’re wrong, you’re wrong. But at least there’s a mechanism that involves not just the executive branch, but also the judicial branch.

There’s a record created so people can litigate it to see what’s going on. We’ll know how many times you use it. And so far, Massachusetts has kind of adopted a loose version of that and it’s worked fine. So what I propose in the book is that we should build out what I call the Law Act, these kinds of procedures where when we have this sort of scary new technology, we don’t just say, “Hey, there are no rules, police and technology companies can do what they want. ” We say, no, we need to limit them for the dangers that they could be abused and we create procedural and substantive protections behind it and we enforce those procedures. And so there’s a whole chapter about how this could be done. Obviously, I’m not the only one who have thought about this. There have been draft bills in Congress about the facial recognition technologies, but we just haven’t had the push to get over the hurdle of getting Congress to do anything or getting legislators and states to do anything.

And my hope is maybe the book will spark a debate to get some of that stuff moving.

Lee Rawles:

The other piece I loved was you were talking about how the judiciary and legal theory can adapt to consider these technologies in a more helpful way. And an anecdote I love from the book and a theory that I really enjoy came from one of your law students and it’s about communicating with your device. Can you tell the listeners a little bit about that?

Andrew Ferguson:

So yeah, again, the reality of our current law is that there is no evidence you can create, no digital fact or piece about you that can’t be obtained with a warrant, that can’t be obtained … If police have a warrant, they can get it. The only limits in sort of criminal process are privileges. So a husband and wife or two spouses who are speaking, who are married, that communication is privileged. It can’t be used in court. An attorney-client has an attorney-client privilege because obviously the client might admit they did the murder, but that admission can’t be used in a court. And so I was trying to figure out a way to think about how we could create privileges in a digital age. And I was talking about this in a class, and this is one of the wonderful things about teaching law is you have these amazing conversations with amazing young law students.

And this law student raises hey and says, “I kind of feel like I’m always having a conversation with my phone. I chat with it, I ask it questions, it responds to me. ” I kind of feel like I’m actually almost closer with my phone than most people. I ask it the questions I wouldn’t ask my friends, “I’m embarrassed.” And I think that that kind of communication should be privileged. And I was like, “That’s actually a really interesting insight. Maybe we could create a digital privilege.” Again, privileges are state made, like the states can choose what they do if the federal rule … Of evidence or defer to states and say, “We think this data can be privileged.” So I think a good example of that is the heartbeat, the smart pacemaker. That kind of information that’s literally coming from your body, it’s in your heart.

It’s going to your doctor. Shouldn’t just be privileged from a patient doctor privilege, but that kind of communication should be privileged and not be allowed to be used in court. Now, does that mean there will be cases like maybe like the arson case where the government can’t prove the guilt of the person? Maybe, but that’s also true with the admission between two spouses. And the reason why we have these communication privileges is we think there’s another value out there that’s more important. We think the sanctity of marriage or the sanctity of the attorney-client privilege in a criminal legal process is more important than evidence. And I think we can get there with some of our digital exposure that we are revealing to companies and entities and medical providers of digital means, whether that’s mental health things or now we have these AI chatbots where people are talking for mental health needs.

I think we could create a privilege around that that would limit the government’s ability to use that as evidence against you in court.

Lee Rawles:

We’ve talked about consumers, we’ve talked about police, we’ve talked a little bit about technology companies, but one thing that you really get into in the book, so everybody pick up your data will be used against you. I don’t think everyone’s aware of data brokers. Could you talk a little bit about this industry and their, in my mind, kind of crazy reach because that is another thing that I think if explained to people, people might be willing and eager to put some more boundaries in place.

Andrew Ferguson:

So we’ve had like sort of two generations of data brokers. The first generation was really based on our consumer purchases and our web, all those cookies that follow you on the web. There were companies that were essentially tracking you and seeing what you bought and how long you stayed at a particular website. I could see what magazines you read, could figure out where you shopped. And we’re basically buying all of the pieces of data to create profiles of you to sell things to you. The whole goal of data brokers originally was the ability to sell that information to people who wanted to sell you goods and services, and they made money. That information, of course, could also be revealing of whether someone had addictions to drugs or other things, whether someone was pregnant, medical needs, mental health needs, all of that, of course, is revealed from your purchases and interest into those things.

The second generation of data brokers looked at your travels. Many of you have apps on your phone that are essentially tracking devices. It might look like a flashlight. Okay, you got a free flashlight. That’s awesome. Actually, it’s just tracking you. And that data is being sold by people who now know not only what you’re purchasing, but where you were when you purchased it. And the data brokers that are now building out these digital tracking things have really granular information about you based on these kind of advertising picture sort of cookies, but they are a different technology in your phone that can track you wherever you go and what you’re doing and by inference, what you’re doing there. And the reality is that while maybe you’re okay with that being sold to the store that will give you a deal when you’re nearby and the store recognizes your phone, but also can be sold to law enforcement.

They can now track you to determine where you are. So were you at the protest? Guess what? Your phone is going to reveal that. Were you talking to someone who’s seeking legal services for being undocumented? Well, guess what? Your phone just gave you away. And the current law is because these are private companies selling private data that you sort of unconsentingly consented to, you didn’t really know it, but you did, the government can buy it too. And so we’re seeing federal law enforcement agencies, including DHS and other places, buy this data that they can now use to have an almost perfect tracking technology to determine what you’re doing and where you were at the time they’re suspicious that you did something.

Lee Rawles:

Well, I think that there are going to be plenty of listeners who hearing this may also wonder what you can do individually. I think you make a compelling case in the book that this is not a problem that you can solve on an individual level. It’s going to take a whole bunch of individuals coming together collectively. But for the people who are nervous and would like to maybe take a look at their own digital lives and surveillance, you do give kind of five tips. So would you mind going into those?

Andrew Ferguson:

I do think it’s a danger to frame any of this as an individual choice. I think the reality is like you and I cannot negotiate with Amazon. We can’t negotiate with the FBI. We cannot control how our data is being used. And if we sort of continue on an individual choice level, we’re always going to lose. And so I talk about things that people can do to sort of build out that community, whether that is supporting politicians that might actually be sympathetic to data privacy, which again, much of this could be changed honestly tomorrow if we had a Congress or state legislators that were concerned about it. And so part of what I want people to do is read the book to be educated so that they can respond. None of the ideas that are written about the book would have happened if there weren’t like journalists who were out there exposing things and changing things and reporting on it.

And I think we all owe an obligation to support journalism, especially in this age. The amount of scoops and reveals that happen because the tech journalists who I mentioned in the book are just breathtaking. And yet we could do more because I think there are actually more stories to be told if we could support people. We can do some individual things that you can sabotage your own data. You can actually create different emails. You can turn off your location tracking. You can choose not to … Do you really need the camera watching your cat while you’re away? Probably not. Your cat was fine before that, doesn’t even really want to be watched, but maybe interrogate these questions about you. But it’s not a book that’s meant to sort of shame you about your choices. It’s meant to cause you to think about them. And I think I wrote this book in part because I was wrestling with it.

The rise of big data policing was about how government was surveilling us. And then I realized actually we’re part of the problem. We’re paying taxes that are putting up the sensors to surveil us. We are giving the green light to real-time crime centers with video analytics that can track us wherever we go. And that’s on us. And we are also the people who are paying a lot of money for this sort of surveillance as a service. And I always joke that if tomorrow you were told, the government knocked on your door and said, “We want you to put a wiretap in your house. We want to put a camera on your door. We want a network of snitches to tell what’s going on in your neighborhood. We want to know what you’re reading. We want to know what you’re buying and we want to understand any medical needs.” You would be offended outraged.

This is just the worst thing. This is not America. And yet many of us give all that data to Amazon on a daily basis. We have Alexis in our home, we have Ring doorbells on our front door, we have the Neighbors app, we read on Kindle, which is being tracked. We shop at Whole Foods is being tracked and they know what we purchase both medical and otherwise. And that’s one company, right? We are literally buying Dystopia Prime and paying for the service of it. And there’s a reason, like I use some of those services, obviously, as many people do, but I don’t think we’re recognizing that if Amazon said, “You know what? We normally have a pretty consumer first philosophy, but we also have these billion dollar AWS contracts with the government and the government really wants the data on these people who seem to be causing trouble, maybe we’ll give it up.” And there’s nothing to protect us.

We gave it up to the company without corresponding protections about how it could be used. And I think that’s a real vulnerability in our current systems. All of those big tech companies that have all of our data also are somewhat beholden to the government for larger economic reasons, but are definitely beholden to the US like government if they get a warrant. They can’t even say no if there’s a lawful warn.

Lee Rawles:

Yeah. And when reading the book, I kept thinking about the legend of vampires only being allowed inside your home if you invite them in. I’m like, “Oh, we have invited them in. ” And you’re right, on a personal level, I have never had an Amazon Echo in my house. I do not use Siri. I do not do any of those speak out loud and it’ll do what you say technologies, but I recently, I’m going to the University of Wisconsin-Madison for another graduate degree and I had to prove that I lived in state essentially. And what they were asking for was proof for 18 months, three to four pieces of evidence showing that I was physically in Wisconsin. And I was like, “Oh my God, how am I going to do that? ” Easy. I just opened up my Amazon and could show, oh yeah, that was delivered to my house, that was delivered to my house, that was delivered to my house.

And it was a little eerie and upsetting to think about, “Oh yeah, no, you may be taking some measures, but you’re part of a larger system and it’s a problem that’s-“

Andrew Ferguson:

And we do that all the time. Spotify, my kids listen to Spotify, I listen to Spotify. Spotify Wrapped is this great example of surveillance. It literally tells you at the end of the year exactly what you listen to to the minute of what you were doing. And as you’re listening to it on a Saturday morning, you’re not thinking that this is actually a form of surveillance because you’re like, “Oh, I just wanted this music to play.” But it is. And that is actually, I think, the insight of a lot of digital technology. All of your smart devices are surveillance devices and we don’t have corresponding protections about how that data could be used if the government wanted to use it against

Lee Rawles:

You. And I think Spotify Wraps is another great example because I ride in the car with my eight-year-old nephew and he gets to control what plays when that happens. So this year my Spotify wrapped, it’s AI analyzed my listening and it’ll say, “Oh, well, guess what age you are? ” It guessed I was 20 years old and that’s funny, but also it could be very scary because we have all of these new products that will analyze these data points. They won’t necessarily come up with the right answer, but they could come up with an answer that could get you in trouble. I’m not going to be in trouble for them thinking I was 20 years old, but it’s illustrative of data points can be used to tell a story that isn’t necessarily the actual truth.

Andrew Ferguson:

It sounds true. Our family Spotify wrapped, actually our number one song was Enya, because we use it to quiet our puppy, which we just got all night so she doesn’t whine. And so we would be playing Enya on repeat all night. And so by far, our number one song was Enya, which you don’t necessarily listen to, no offense, Enya, on our own, but our puppy was definitely like an Enya fan. And so-

Lee Rawles:

It’s your favorite Shepherd moons. It’s a great album.

Andrew Ferguson:

Yeah. We were sabotaging our own data, I guess, in that way, not intentionally. But I thought it was interesting, my kids who are, again, younger, could see almost the granular nature of this data of what’s happening. And if you think about every time you’re online, every time you’re clicking on that, every Google search, it’s being recorded. And we have their cases in the book about how your Google searches can be used against you. Sometimes for good reason, like when you’re typing in, how do I hide the body and a series of- Which people do. … dumb queries that show you very much just killed your wife, but it also could be like abortion services War2 or other sorts of kind of private informations. I would imagine many of us probably have asked Google things that we wouldn’t want to be broadcast, we wouldn’t want to be used against us.

And if there’s a government that’s willing to do it, like if you’re a senator or a Congressperson taking on a government willing to sort of use or misuse data, you’re kind of vulnerable too, which is kind of interesting, right? Your data could be used against you even at the highest, most privileged reaches of our government.

Lee Rawles:

I’d like to end our discussion talking about the tyrant test. Could you talk a little bit about that? Because I think that’s also how you ended your book.

Andrew Ferguson:

Yeah. So I have this idea at the end, which is called the tyrant test. And what it says, we should assume the worst. We should assume that the tyrant is reading your Google searches and then proceed a pace, proceed how you would respond to the fact that your data could be used against you. And it can’t be a single answer. It has to be a kind of all of the above answer that sort of divides power. It divides things of who can use it. Are there checks and balances? Are there remedies and rights that you can do it? And I sort of base that on the original tyrant test, which was the founding of America, the idea that the American system of government was worried about a concentration of power that could be used against you. And they were consciously trying to break that apart between the federal government and the states, break apart between the three branches of government, create juries and grand juries and individual rights for the bill of rights and saying this is one way to recognize that the danger of the tyrant, metaphorical or real, is always there.

And the way to limit it is to break apart that power so it can’t be used. And I say that we should approach that again, having legislative responses like the Wall Act, judicial responses like the theories I put forth for judges to follow, individual responses, community responses, and rights and remedies to say, I think it’s fair to say that whatever technology we build will be misused and there should be a way to challenge that misuse in court and try to protect against us. And we need to have that kind of all of the above approach.

Lee Rawles:

Well, Andrew, thank you so much for coming on to talk about your data will be used against you. If people are interested in talking to you further about these ideas or in picking up the book, where would you point them?

Andrew Ferguson:

So I teach at George Washington University Law School, happy to talk about the book, happy to engage people on social media like Blue Sky or LinkedIn, and happy to just listen to the podcast over and over again. You’ve got a good sense.

Lee Rawles:

And as we talked about off camera, there are three DC area Andrew Fergusons. The one you’re looking for is Andrew Guthrie Ferguson.

Andrew Ferguson:

Correct.

Lee Rawles:

Well, thank you to Andrew Guthrie Ferguson for joining us on this episode, and thank you for tuning in to listen. If you enjoyed this episode, please rate, review, and subscribe in your favorite podcast listening service.

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