The Digital Architectures of 'Smart' Cities and the Fourth Amendment: In Response to Andrew Ferguson

Abstract

In Structural Sensor Surveillance, Professor Andrew Ferguson provides an astute – some might say smart -- lens for viewing urban planning from a Fourth Amendment digital perspective. This reply to Professor Ferguson’s article does three things. First, it amplifies some of his observations and conclusions. Second, the reply fills in some gaps and critiques some of the article’s assumptions. Third, it offers a few suggestions of its own. ‘Smart’ means many things in the current lexicon. Within the realm of the Fourth Amendment it means something that is part of a digital network producing a stream of data. The common use of the word “smart” in this context indicates that there will be valuable – perhaps even monetized -- information produced by the networks that multiple entities might want to or in fact access. These networks have sensors linked to each other to effectively create massive surveillance systems. Unlike physical surveillance, transaction costs are low. While these surveillance systems often are initiated by consumers who enjoy the conveniences of the Internet of Things (IoT) or businesses that utilize the information highway for profit or efficiency, it also involves systems deployed or accessed by government entities. While governmental use of smart sensor structural design in cities can greatly assist cities, it also poses a threat through the mass surveillance systems it creates. Professor Ferguson has termed this byproduct of smart sensors “sensorveillance,” showing that the surveilling sensors have a potential windfall of information for crime investigators and a diminishment of privacy. He notes: Using data, police can monitor individuals thought to be involved in criminal activities, associated groups involved in networks of crime, and places of criminal risk. They can seek to understand points of environmental vulnerability, victims most at risk, and patterns of crime. They can seek to understand crime data in terms of geography, time, people, and patterns, and visualize it across the days, weeks, or years. Using smart sensor technologies, police will possess a powerful investigative “time machine.” Professor Ferguson’s article explains how the structural design of “smart” cities embedded with tens of thousands of sensors on communications networks could minimize violations of the Fourth Amendment: Because the digital architecture must be built from scratch, digital property rights and social expectations of privacy can be written into code—both legal code and computer code. This moment of physical and digital construction opens the possibility for a legal reconstruction of privacy, potentially offering more protections, more transparency, and more democratic engagement about the balance.... While the crux of Professor Ferguson’s inquiry lies in the government use of sensor-derived information, sensorveillance is not simply a product of intentional malevolent snooping by the government. As one commentator observed: “Though the intended consequence of smart city technology may be efficiency, the unintended consequence may be surveillance.” The fact that snooping occurs without scienter does not make it any less snooping or an invasion of privacy. Yet, no matter how mass data is derived, Professor Ferguson argues that the intentionality of digital design in cities matters: “Depending on how the sensors are configured, these city environments can either create a Fourth Amendment search problem or avoid one…. Because the digital architecture must be built from scratch, digital property rights and social expectations of privacy can be written into code—both legal code and computer code.” With this one sentence, he reveals the scope of his intentions – combining complex legal analysis with urban planning. In essence, it is not only avoidance of Fourth Amendment violations that he is advocating, but a much more ambitious policy-based utilitarian model that would result from Fourth Amendment tailoring. He asserts that this would be beneficial for democracy overall by promoting citizen engagement. This reply largely agrees with Professor Ferguson’s embrace of forward planning –instead of just a retrospective about a decided case – and his creation of potential standards for a greater utilitarian process and better city infrastructures. Yet, as city subway riders are warned, he needs to mind the gap(s) in his projections, ranging from ransomware attacks to implicit bias. Further, he might possibly consider some additions, doubling-down on firewalls and adding in the Third Amendment as a potential reinforcing bulwark. This reply has a compact structure. A short background section framing the applicable Fourth Amendment law follows this introduction. The next section explains in greater detail the reply’s alignment with Professor Ferguson, the gap(s) to be minded, and some suggestions. It ends with the expected conclusion.