Amazon Ring Master of the Surveillance Circus.

• Date: 01 April 2021
• Author: Frascella, Christopher
• Published date: 01 April 2021
• Author: Frascella, Christopher

TABLE OF CONTENTS I. INTRODUCTION 395 II. SURVEILLANCE, STARTUP CULTURE, AND SOCIETY 396 A. Ring is Intuitively Troubling, But Permissible 396 B. Today's Privacy Harms, Made Worse Tomorrow 397 C. A Solution to Protect Consumers and Non-Consumers 400 III. AMERICA'S SURVEILLANCE ZEITGEIST 402 A. Surveillance Capitalism Moves Faster Than Tech Regulation 402 B. Changing the Calculus on Incentivized Consent for Surveillance 405 C. State Consumer Protection Agencies Must Continue to Lead 405 IV. THE LAW'S RESPONSE 406 A. Traditional Legal Remedies Do Not Apply 406 B. There is a Pressing Need for Alternative Remedies 408 C. The Case for Consumer Protection 409 1. UDAP Statutes--Active Law Across All States and D.C. 410 2. FTC Endorsement Guidelines--Federal Guidance Each State Would Need to Adopt as Regulation 411 3. Practical Limitations of the Consumer Protection Approaches 412 D. Other Public Policy Considerations 413 V. FRICTION IS THE BEST NEAR-TERM SOLUTION 415 A. The Limits of Actionable Conduct Under Consumer Protection Law 415 B. Friction and Deterrence through UDAP 419 C. Friction and Deterrence Using the FTC's Endorsement Guides as a Model 420 VI. CONCLUSION 421 I. INTRODUCTION

In an era when many call for defunding police departments and when racial inequities in policing and surveillance are at the fore, it is important for local law enforcement to cultivate trust with the people they protect by improving the transparency and accountability of their surveillance practices. Instead, hundreds of departments are operating like marketing partners, and in at least one instance facilitating and subsidizing the sale of one company's surveillance tech products to consumers.

This Note will focus on police departments' promotion of Amazon Ring doorbell cameras--surveillance tech that, by design, enables police to request access to footage from consumers before requesting a warrant from courts--and of the related Neighbors app, which combines aspects of a neighborhood watch program and an online message board, and allows for easy sharing of Ring footage. (1) Police departments have received compensation from Amazon for their efforts in the form of discounted Amazon Ring units proportionate to the number of local downloads of Amazon's Neighbors app, promoted Amazon products openly over their official social media accounts, and signed agreements giving Amazon oversight over police departments' public communications about Amazon's products. (2)

Surveillance technology companies should be held to the same standard of transparency and truthfulness in advertising as other industries. Similarly, police departments should be treated as any other marketing organization when acting as influencers. Consumer protection law can be used to compel disclosure of these relationships, and to create the resistance that should exist when police departments become complicit in peddling a nationwide surveillance network of questionable efficacy and demonstrated capacity to exacerbate existing social inequities.

Communities can now aggregate information and act with greater speed and ease than ever before--including facilitating the deployment of law enforcement resources. By virtue of American privacy law's slow development and Amazon's clever strategy in incentivizing law enforcement to market its products, Amazon Ring created a network of doorbell surveillance cameras potentially accessible to police departments by a single click rather than by a warrant. While this is a threat to the privacy of any individual who happens to be "in frame" of one or more doorbell cameras, partnerships like these pose additional risk to communities of color due to the social, technological, and institutionalized racial biases at play. This systemic threat is growing at breakneck speed, in large part because Amazon has deputized local police as a partner marketing channel.

Consumer protection law may provide the only immediate friction to slow this otherwise rapid and geographically widespread deterioration of civil liberties by forcing transparency regarding the nature of the relationships between local police departments and Amazon Ring. This Note begins in Section II with an overview of relevant Amazon products, Ring and Neighbors, and an overview of why without enacted federal privacy legislation, consumer protection law may be the only remedy immediately available. Section III provides context as to the growth of surveillance technology and the relationship between surveillance tech vendors and police departments. A more detailed explanation follows in Section IV of why traditional legal remedies do not apply to situations like that of Amazon Ring and why that legal impotence is unlikely to change soon. This Note concludes with a brief analysis of (1) state Unfair and Deceptive Acts or Practices (UDAP) laws and (2) the FTC's Endorsement Guides, explaining how they serve as the best means for immediate redress.

2. SURVEILLANCE, STARTUP CULTURE, AND SOCIETY

   1. Ring is Intuitively Troubling, But Permissible

      Despite the threats to the privacy of consumers and non-consumers, there are no legal barriers to use of the Ring product. Homeowners choose to purchase a Ring doorbell camera unit, sign a contract giving Amazon ownership of the data, install the Ring unit appropriately (so that it captures video of their doorstep), and provide the required consent (often by clicking a button in an automated email) (3) for the police to access the Ring video feed.

      Because of this structure, Ring customers are not compelled to do anything with their property. Amazon is not responsible for customer misuse. Police cannot access the video without either the property owner's permission or a warrant. (4) And passers-by captured on video have no expectation of privacy while walking in public view.

      Moreover, Amazon ceased two of its most questionable practices: providing police departments with (1) heat maps of Ring coverage and (2) reports of property owners who deny their local department's requests to view their Ring data. As of 2020, Amazon allows users to preemptively opt out of requests from police to the user, and as of 2021, offers opt-in encryption to ensure Ring data is not visible without deliberate action from the user. (5) Arguably, Ring is exhibiting the 21st century "move fast and break things" startup culture in rolling out a new product. (6)

      As for other obvious stakeholders, property owners have the right to protect their property interests, and police are within their rights to fulfill their public safety mandate using the most efficient means available, assuming those means are legal.

   2. Today's Privacy Harms, Made Worse Tomorrow

      Consumers who purchase Ring equipment and do not opt-in to encryption are subject to Amazon harvesting and using their data. However, arguably the greater risk here is to those who do not purchase the equipment but are still surveilled. As the use of Ring grows, communities will be subject to constant surveillance, with questionable accuracy and limited accountability. (7) This becomes truly chilling when combined with experimental technologies already gaining traction in the marketplace, such as facial recognition (FR), which promises to create a 21 (st) century corporate panopticon. (8) Admittedly, Amazon has implemented a self-imposed moratorium on selling facial recognition technology to law enforcement. (9) However, this does not address the underlying surveillance technology infrastructure problem, especially if in selling these products to consumers, Amazon facilitates sharing that data with police departments, as part of the product's design. (10) These in-roads to a surveillance state are forming faster than the public's ability to understand and respond to the threats they pose; this is in large part because police often endorse solutions, such as Ring and the related Neighbors app, from the Amazon surveillance suite. (11)

      Discussion of the Neighbors app below illustrates how this kind of surveillance can harm the fabric of a community, often with racist subtext. One Amazon worker argued that Ring is "not compatible with a free society." (12) An Amazon software engineer offered: "The privacy issues are not fixable with regulation, and there is no balance that can be struck. ... Ring should be shut down immediately and not brought back." (13)

      In terms of criminal justice implications, Supreme Court case law suggests that errors made as a result of imperfect database-driven technologies, which can easily result in wrongful identifications (perhaps even of members of Congress (14)), could be excused by the "good-faith" rule, (15) meaning American citizens have no reasonable expectation of accountability for police or for vendors of hastily deployed, FR-amplified surveillance tech, except perhaps in the most egregious of circumstances. And we can expect such errors will occur, indeed, some already have. (16) A recent study by the National Institute of Standards and Technology (NIST) documented the potential extent of race-based disparities in the accuracy of the technology: Asian and African American people were up to 100 times more likely to be misidentified by this technology than white men, with Native American subjects experiencing the highest rate of false positives. (17)

      The technological infrastructure is already in place. Amazon has attempted to sell its own FR product called Rekognition (18) to police departments (19) and already filed a patent to use FR technology in conjunction with Ring. (20) As of late 2019, there were more than 7 million downloads of the companion app, Neighbors. (21) Globally, more than 10 million Ring units have been installed. (22) And by the end of 2020, forty-eight states had at least one police or fire department participating in the Ring program, with local law enforcement agencies in at least two states piloting programs to integrate Ring footage into their Real Time...