Program transcript:

Grant Reeher: Welcome to the Campbell Conversations, I'm Grant Reeher. When it comes to generating data that can be used against us by the government, are we are own worst enemies? My guest today has a lot to say about that. Andrew Guthrie Ferguson is a professor at George Washington University Law School, and he's the author of a new book. It's titled, “Your Data Will Be Used Against You: Policing in the Age of Self-Surveillance." Professor Ferguson, welcome to the program.

Andrew Ferguson: Thank you so much for having me.

GR: Well, we really appreciate you making the time. So, I'm going to spend, I think, most of our time just unpacking a very provocative sentence that you write near the beginning of your book. You write, “you are, at best, a warrant away from having your most intimate personal details revealed to a government agent looking to incarcerate, embarrass, or intimidate you.” There's a lot to unpack there. So, that's going to be our roadmap. But first, I thought it would help to set some of the context for this by breaking down some of the building blocks for your analysis in your argument. So let me start with this one, you write of certain kind of data sources, and it's right in the title of your book, you call them ‘self-surveillance’. Just give us a clear idea of what that means, the kinds of data mines that you're talking about there.

AF: Sure. So, if you live in a world where you have a smartphone in your pocket or a smartwatch on your wrist, or drive any modern car that is essentially a smart surveillance car, or have a ring doorbell camera on your front door, an Alexa in your home, use the internet, ask Google questions, you are creating data about yourself. And the thing that I think we haven't fully recognized is that all of our smart devices are surveillance devices. In fact, that's sort of what you're purchasing. You're purchasing some insight about yourself, about your life, about your patterns that you think will add value to your life. The downside risk is that all that data is available to law enforcement, to prosecutors. And it is, as you said, at best, a warrant away from being revealed. And what the book does is try to explain how we have sort of built this world of self-surveillance. Not to judge us, we are all digital citizens in one way or another, but to recognize that these purchases and these choices have costs and that we haven't really wrestled with the costs of that self-surveillance.

GR: So, in your book, you take the first several chapters breaking out that different kind of data, and you just gave us an idea of that when you just listed the different kinds of devices that, you know, a lot of us have, certainly almost everybody has the cell phone, the smartphone. And you talk about data that's in and about our homes, and you have one about our things, our bodies, our cities, our papers and our likes. Now, some of those I think we understand immediately. And when you just described that list that you gave, you know, we all can relate to that. I was curious to hear you spell out a little bit about what our cities and our papers mean in those chapters. That's less clear on the surface.

AF: Sure. So, we as a society have invested a lot of money in building surveillance devices in our cities. Whether they're automated license plate readers that catch the license plates that drive down your streets, cameras that are connected to real time crime centers where police can surveil the city streets from the comfort of their command center. Whether it is other forms, you know, drones and other new technologies that are watching us. That is a form of self-surveillance. It’s democratically mediated, it's our city council saying that we think that we can buy a world of safety through surveillance. But these are choices. Choices that we make with our tax dollars, we make with our elected choices of representatives. And it is another form of this world where we are building surveillance devices for when we go out in public, but also, of course, as we are in our home. And the papers part, again, the chapters that begin the book talk about how our homes have been transformed into smart homes, our bodies have been transformed using biological markers, be it your Fitbit or your smartwatch or your smart pacemaker or whatever it would be. But papers, papers also date back to the founding fathers. We have papers, effects, persons in homes as our Fourth Amendment protections. And most of what we do now is mediated through a digital form that takes the place of papers. You know, my parents used to get a bank statement in the mail, literally every month, that they saved in the attic so we would have boxes of papers and that was your financial records. Now it's all digital on your phone. We used to write letters. Again, they actually had love letters that they wrote back when they were courting in the air and now people have, like, texts and maybe an email or two to do that. But all of that digital information is recorded somewhere, usually held by some third party, and is available if there is a criminal prosecution, if there is a warrant, if there is a desire. And what I don't think we realize is that that exposure, that digital exposure, leaves us all very vulnerable to political winds that change, to certain kinds of targeted prosecutions. And it's something that we should just have a conversation about, and the book is trying to start that conversation.

GR: Yeah. Just a couple of quick observations about our cities. I just want to, you'd be interested in hearing this, but that question and that issue has been one that has come up in Syracuse, because Syracuse has been instituting these. It has been framed as something that will make the city run more efficiently and provide better services. But at the same time, there has been conversation about this idea that we are, you know, increasing our sense of monitoring. And I remember I worked several years ago over a number of different summers in London, and it was often said, I remember it being said that because of the heavy use of CCTV, that pretty much anywhere in London, you were on television somewhere. And I remember taking some comfort in that as a pedestrian walking around. But I see the other side of this now that you bring it up.

AF: And that's part of it, it's that duality, right? It's not that smart cities are bad, it's not that security cameras are bad, but in an unregulated world, in a world where that technology can be weaponized for other things that we didn't agree to or don't think is wise, we run into problems. And that's the hard part. We are not wrong in thinking that maybe certain forms of surveillance will help law enforcement. It will. And the book is actually filled with stories of people getting caught because of their data and like, bad people getting caught because of their data. And that's not a bad thing. The danger is that who is bad or what is criminal can change politically, can change because of who's getting targeted and without rules and regulations to limit it. It really does expose all of us to essentially the whims of who's in charge and what they want to prosecute.

GR: Yeah, anyone who's watched British crime television knows, the first thing that detectives all go to is the CCTV. But you're right, the double edge-ness. I'm Grant Reeher, you're listening to the Campbell Conversations on WRVO Public Media, and my guest is George Washington University law professor Andrew Guthrie Ferguson and we're discussing his new book. It's titled, “Your Data Will Be Used Against You: Policing in the Age of Self-Surveillance.” So, give us some more examples, maybe some of the ones that you think are most telling or the most intriguing or the most disturbing of how the information can be used against us. I mean, we understand that there are some good things that can be done with it, but as you say, it depends on whoever is in power and using this. Give us some examples of things we might want to be worried about.

AF: There’s a story that I think both captures the promise and dangers and just difficulty of these issues. (It) involves a gentleman who had a smart pacemaker in his heart. So, I think we can all agree that the medical inventions and interventions that allow someone to live better because their heart is beating at a certain way and recording that data for the individual themselves so it can take care of themselves, go to the doctor, but is also that data is also being forwarded to the doctor's office is a good. That's actually the kind of thing that we should encourage, we would like. But the case in the book is when detectives go to the doctor's office and get this guy's heartbeat and use it against him in a criminal case, because, and this is the tension, he was involved in some insurance fraud. He was basically, burned down his house, claimed it was, you know, an accident when really it was arson. And the detectives wanted to disprove his story by showing that his heartbeat didn't match what he said had happened. And this is, you know, the detectives aren't necessarily doing anything wrong in the sense of they have a crime, they're trying to investigate it. But the idea that our own heartbeats could be used against us in a court of law, I think raises some really difficult questions of, are we okay with that? Because the truth of the matter is, there is nothing too private. The data from your smart bed,...