Elizabeth Joh, Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion

Elizabeth Joh, Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion

Comment by: Tim Casey

PLSC 2013

Published version available here:

Workshop draft abstract:

To the police, evading surveillance is strong evidence that you’re a criminal; the problem is that the evasion may only be a protest against the surveillance itself.   How do we tell the difference, and why does it matter?

Surprisingly, these questions have not attracted serious attention by judges or legal commentators.   It is surprising because the means of surveillance have become ever more sophisticated and difficult to avoid.  If you want to track someone down, you can discover a surprising amount of information with increasing ease.  Sophisticated technologies have made the collection of data, verification of identity, and prediction of behavior simpler and faster.  These technologies have also greatly improved the capabilities of police investigations.  The police have added thermal imaging cameras, global positioning satellite trackers, cell phone site data, computer surveillance software, and DNA swabs.

But some people resist these incursions and take steps to thwart police surveillance out of ideological belief or personal conviction.   Instructions and products are readily available on the internet.  Use photoblocker film on a license plate or a ski mask to stop a red-light camera.   Avoid ordinary credit cards and choose only cash or prepaid credit cards to make a financial trail harder to detect.  Avoid cellphones unless they are prepaid phones or “freedom phones” from Asia that have all tracking devices removed.   Avoid using email unless you use disposable “guerilla email” addresses which disappear within an hour.  Use “spoof cards” that mask your identity on caller id devices.   Burn your garbage to hamper investigations of your financial records or genetic evidence.   A professional can alter your digital self on the internet by erasing data or posting multiple false identities.   At the extreme end, you could live “off the grid” and cut off all contact with the modern world.

These are all examples of what I call privacy protests: actions individuals take to block or to thwart surveillance from the police for reasons that are unrelated to criminal wrongdoing.   Unlike people who hide their activities because they have committed a crime, those engaged in privacy protests do so primarily because they object to the presence of perceived or potential government surveillance in their lives.

Privacy protests are easily grouped together with the evasive actions taken by those who have committed crimes.   The evasion of police surveillance can look the same whether perpetrated by a criminal or a privacy protestor.  For this reason, privacy protests against the police in particular and the government in general are largely underappreciated within the criminal law literature.

This article aims to document privacy protests as well to discuss how the police and the Fourth Amendment fail to take them into account.   These individual actions demonstrate that the boundaries of privacy and legitimate governmental action are the product of a dynamic process.  A more comprehensive account of privacy must consider not only the attempts of individuals to exert control over their own information, lives, and personal spaces, but the ways in which they also take active countermeasures against the government and other private actors to thwart attempts at surveillance.