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Excerpted From: Katelyn Ringrose and Divya Ramjee, Watch Where You Walk: Law Enforcement Surveillance and Protester Privacy, 11 California Law Review Online 349 (September 2020) (96 Footnotes) (Full Document)
Protest is a fundamental feature of democracy, yet protesters have been continuously met with domestic surveillance mechanisms intended to chill public free expression and criminalize lawful behavior. The deployment of privacy-invasive measures against protesters in public spaces has an extensive and storied history--one often rooted in racism and discrimination. And while the technology may have changed, the purpose remains the same: to surveil, identify, and detain dissenters.
Article discusses the disparity between the surveillance technologies available to protesters and the government, as well as the limits of proposed efforts intended to regulate government surveillance and hold law enforcement accountable. While surveillance mechanisms are often defended as a means for providing equal accountability for everyone, not everyone is truly surveilled equally. Automated law enforcement technologies like those we discuss below, including (I) body-worn cameras, (II) license plate readers, (III) cell-site location services, (IV) drones, and (V) facial recognition technologies, are commonplace means to surveil protesters; yet, the only mechanisms available to protesters to protect their privacy or countersurveil law enforcement is often (VI) a smartphone camera and the power of social media shaming. Although protesters have developed inventive ways to try to shield themselves from unwarranted government intrusion, these new methods do not compare to the sheer number of surveillance options available to law enforcement.
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As digital surveillance technologies advance, so too does the risk for targeted repression. Communities of color already face higher likelihoods of poorer health outcomes and financial hardships due to the COVID-19 pandemic. Now they must incur higher risks of victimization while advocating for an end to systemic racial injustice, which has been spurred by instances of fatal law enforcement use of force against minorities. Law enforcement has a responsibility to facilitate the rights of civilians, including the First Amendment right to peaceful protest--not to quash expression of those rights. Those who protest and advocate for equality and justice should not have to risk being the victim of the extensive reach of the state while merely exercising their constitutionally mandated rights.
Katelyn Ringrose, JD, is the Christopher Wolf Diversity Law fellow at the Future of Privacy Forum.
Divya Ramjee is a doctoral candidate at American University in the Department of Justice, Law & Criminology.
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