CONCENTRATED SURVEILLANCE WITHOUT CONSTITUTIONAL PRIVACY: LAW, INEQUALITY, AND PUBLIC HOUSING.

• Author: Owens, Lisa Lucile

INTRODUCTION 132 I. SURVEILLANCE CAMERAS AND SOCIAL AND ECONOMIC INEQUALITY: THE CASE OF PUBLIC HOUSING IN NEW YORK CITY 135 A. An Introduction to Public Housing 139 B. The Main Finding: Who is Interpreting the Data. 143 C. Second Finding: Safety 146 D. Assessing the Data in Light of Doctrine 149 II. CARPENTER RIGHTS AND SURVEILLANCE DATA:AREAPPRAISAL 153 A. The Digital Nature of Data 154 1. A Timeline of Novelty and Conventionality 158 2. A Network Understanding 160 3. How Much Data is Too Much Data 161 4. The "Click of the Button" 162 B. What is a Meaningful Choice? 162 1. Choice Without Adequate Choices 163 C. The Privacies of Life and Physical Location 164 1. When Physical Location Becomes a Privacy of Life 165 D. Applying Carpenter 167 III. LAW, CAMERAS AND ENTRENCHED SOCIAL AND ECONOMIC INEQUALITY 169 A. An Intersectional Approach to Understanding Surveillance 169 B. Law & Inequality 174 CONCLUSION 177 APPENDIX I. A NOTE ON METHODOLOGY &SITE CONTEXT 178 INTRODUCTION

The increasing technological capacity for surveillance has been mirrored, in part, by changes in law: in Carpenter v. United States, the Supreme Court expanded individual privacy rights under the Fourth Amendment in order to protect a person's cell phone location data from unfettered use by the state. The decision, heralded at the time as a giant step forward in technological regulation, rested on a central trope that fits neatly into a chronology of ever-expanding technology. The Court emphasized in their holding that "new technologies" raise constitutional privacy protections in a way that "conventional" technologies do not. Hence, cell phone location and movement data, automatically collected and stored as "pings" by the towers of cell phone service providers, was protected and required a search warrant before use; other data, such as the automatic collection of location and movement of individuals recorded by surveillance cameras, was not.

This Article takes issue with the "new" versus "conventional" distinction deployed in Carpenter and notes the obvious and more subtle impact that the distinction has on social and economic inequality in the United States. It contributes to a rich sociolegal and doctrinal literature on surveillance gathering and its use by the state--which has emphasized the features of carceral logics, "e-carceration," over-policing, stop-and-frisk policy, mass incarceration, "poverty governance," and intersectionality (1)--in order to draw out the overlooked effects of this distinction on vulnerable and marginalized populations. Importantly, the article adopts a social science methodology of direct interviews of the people affected by surveillance camera data collection, themselves. Thirty-one interviewees living in public housing in New York City offer their perspective on life under surveillance by omnipresent cameras located in the myriad communal spaces in their buildings--entrances, doorways, elevators, and playgrounds. Their assessment allows a complex picture of surveillance--which includes a tension between safety and privacy concerns-to emerge. The focus of this Article is on the public housing residents who must contend with poverty, housing precarity, and concentrated (2) governmental surveillance. Through an analysis of original social science data, this Article explores how surveillance camera data disrupts a shelter of privacy (3) for residents of public housing subject to the tracking of their location and movement data, similar to the very data collection which the Court in Carpenter is concerned with. This Article will argue that not only is location and movement data collected by surveillance cameras in public housing analogous to location and movement data collected by "newer" technologies, but that police access to such data should be considered a search requiring a warrant based on probable cause. Furthermore, this Article provides an analysis of the impact of this distinction, which reveals a mechanism of the entrenchment of social and economic inequality, showing that even rights expansion can promote inequality when it does not contemplate diversity in experience and context.

The doctrinal protections of the Fourth Amendment have evolved far slower than technology has advanced. Nonetheless, with its decision in Carpenter, a majority of the Supreme Court has indicated a readiness to adapt Fourth Amendment jurisprudence to technological changes. (4) Such modernizing adaptation is driven by the depth and breadth of changes in technology which threaten a meaningful shelter of privacy as they enhance the capabilities of government to conduct both deep-targeting and dragnet data collection. These evolving methods have constantly tested the warrant requirement as a necessary component of any presumptively reasonable search. A turning point in this adaptive process came in the seminal decision Katz v. United States when the Court added the subjective-objective test of legitimate expectation of privacy to the traditional test that protected privacy as anchored in places and tangible objects. (5) If it could be proved that a reasonable person would legitimately expect privacy in relation to certain data, such as no eavesdropping on a call from a telephone booth, the Fourth Amendment's requirement of a warrant before a "search and seizure" was implicated.

The speed of technological development, however, quickly placed the Court in a position to be talking, as it does in Carpenter, in terms of drawing a distinction between conventional and new technologies. Prior to the Supreme Court's decision in Carpenter, much of the data gathered by third parties was not protected by the Fourth Amendment, and so the decision does substantively extend rights. (6) However, even given the potential of a revamping of the Fourth Amendment to enhance protection of the most vulnerable, an (as this Article will argue) arbitrary division between new and conventional technology instead further divides protections along a line which reproduces conditions that drive social and economic inequality.

While this Article attempts to unsettle the doctrinal distinction used in Carpenter, its broader aim is to contribute to the understanding of the causes of the resilience and growth of inequality in the United States. (7) Scholarship, in law as well as social science, has endeavored to map the complex causation of growing inequality, identifying the ways in which the judicial system all the way up to the Supreme Court generally interpret matters in ways that promote social and economic inequality. Although the decision in Carpenter, did not, on its face, explicitly disfavor economically and socially vulnerable populations, this Article shows that the doctrine set forth in Carpenter has precisely that effect. The implications for these findings are important in terms of how we think about the ways law constitutes, obscures, and entrenches social and economic inequality even as it seeks to be neutral or claims to be doing the opposite.

The Article proceeds in three Parts. In Part I, the Article provides an introduction to the use of surveillance cameras in public housing. The data discussed helps to deepen and broaden our understanding of the everyday lives of residents whose movements are often recorded in several locations as they move around their homes. By grounding and contextualizing the data and its contradictions through the analysis of public housing residents themselves, this Part seeks to illuminate the meaning of a meaningful "shelter of privacy" which is given primacy in interpretations of the Fourth Amendment. In Part II, the Article analyzes the holding of Carpenter in terms of the distinction between new technology and conventional technology. It explores the reasoning underlying the concept of "new technology," and examines in particular whether location and movement data collected by surveillance cameras in public housing is akin to that collected by the cell phone data pings at issue in Carpenter. Lower court cases involving surveillance camera data, issued since the Supreme Court's embrace of new technology regulation, are also examined. In Part Ill, the Article incorporates an intersectional approach to further explore the implications and mechanisms of the entrenchment of social and economic inequality, specifically in terms of whether surveillance camera video footage ought to be considered a search under the Fourth Amendment and thus ought to require a warrant based on probable cause.

1. SURVEILLANCE CAMERAS AND SOCIAL AND ECONOMIC INEQUALITY:THE CASE OF PUBLIC HOUSING IN NEW YORK CITY

   Data collected by surveillance cameras in public housing includes troves of location and movement data; this Article claims that this data is analogous to location and movement data collected by newer technologies. it does so by exploring how the data deprive the individuals to whom they are related of a meaningful shelter of privacy. The analysis of the legal treatment of location and movement data collection is not new. (8) in order to add nuance to existing discussions of the social context of location and movement data collection in legal fora, (9) this Article will turn to qualitative data gathered through interviewing residents of public housing in New York City. over-surveillance of low-income communities is problematic and contributes to housing and employment precarity, family disruption, and over-policing; prominent sociolegal case studies have also demonstrated its connection to mass incarceration. (10) The type of surveillance associated with public housing in New York City is common not only in public housing, but also in low-income neighborhoods more generally. As such, though the case and data presented below is limited to New York City, the experiences of residents are also more broadly relatable to the experiences of those living in low-income housing and in primarily low-income neighborhoods across the...