Podcast Summary: "How to Apply the 'Tyrant Test' to Technology"

Podcast: The Tech Policy Press Podcast
Episode Date: February 1, 2026
Host: Justin Hendrix
Guest: Professor Andrew Guthrie Ferguson, George Washington University Law School
Book Discussed: Your Data Will Be Used Against You: Policing in the Age of Self-Surveillance (NYU Press, March 17, 2026)

Overview: Main Theme & Purpose

This episode explores how the growing arsenal of AI-driven surveillance tools, especially those integrated into “smart” consumer products and environments, can be weaponized against individuals and democracy itself. Drawing from his new book, Professor Andrew Guthrie Ferguson details the dangers of living in a self-surveillance world—where our homes, cars, and bodies become evidence machines—and introduces the “tyrant test” as a conceptual tool for tech policy. The conversation examines the gaps in existing legal frameworks, discusses the inadequacy of the Fourth Amendment in the digital age, and outlines practical steps for individuals, lawmakers, and judges to protect freedom and privacy.

Key Discussion Points & Insights

1. The Evolution of Surveillance Tech and Law (01:27 - 03:20)

• Since Ferguson’s previous book (The Rise of Big Data Policing, 2017), surveillance technology has “gotten a whole lot better,” with applications rapidly expanding, especially in law enforcement.
• Legal and regulatory frameworks have not evolved in parallel, leaving new technologies largely unregulated.
• Citizens themselves are now agents of their own surveillance, by purchasing and installing smart devices at home and in daily life: “We are the ones paying for … these new forms of surveillance.” (Ferguson, 02:05)

2. “The Law of the Home” and the Myth of Data Privacy (03:20 – 08:45)

• Smart devices entice us with convenience, but risk packaging extremely private data for retrieval by police and other state actors.
• “There is nothing too private … that police cannot get with a warrant, and much of that they can actually get without a warrant.” (Ferguson, 03:51)
• The legal concept of the home as a protected space fails when private data flows to third parties, outside constitutional guardrails.

3. Dangers of Self-Surveillance and Societal Impacts (05:21 – 11:36)

• Domestic abuse and abortion rights: Victims and those seeking reproductive health services face new exposure to legal jeopardy through data collected by consumer devices (period apps, web searches).
• The seduction of convenience consistently overrides societal and political concerns about surveillance abuse.
• Key quote: “We haven’t done is recognize that we are really opening ourselves up in a really vulnerable way to having all of that very personal data used against us should the government decide to target you for any reason.” (Ferguson, 06:10)

4. Erosion of the Fourth Amendment’s Protections (08:21 – 10:34)

• Traditionally, the home has been a bastion of Fourth Amendment rights. With smart homes, however, “the data in the home doesn’t stay in the home.”
• Private-sector data collection undermines constitutional constraints: “We are giving up this data to private entities without control about how it’s being used.” (Ferguson, 08:45)

5. Real-World Examples: The Minneapolis Dragnet and Beyond (10:34 – 14:18)

• Recent incidents, especially the use of predictive analytics and facial recognition in cities like Minneapolis, illustrate surveillance tools surpassing prior warnings by privacy advocates.
• Expansion from targeting the powerless (e.g., undocumented immigrants) to entire, more privileged communities, suggesting an inflection point for widespread political concern.
• “This should be a bipartisan movement, that this isn’t the kind of federal power we want … unbounded, unchecked, and … targeted against anyone, depending on … who’s in power.” (Ferguson, 13:50)

6. What Can Be Done: Solutions for Individuals, Legislators, and Judges (14:18 – 27:05)

• Individuals: Powerless to individually change the system, but can advocate, support journalism, engage politically, and “sabotage” their data streams (e.g., not sharing full or truthful information).
  • “As individuals, we are largely powerless against the data-driven technologies directed against us. But… the one thing the book is meant to do is to encourage people to get involved and get engaged.” (Ferguson, 15:34)
  • Be wary of new threats (e.g., uploading all personal data to agentic AI chatbots).
• Legislators: Focus policy on limiting what data can be introduced as evidence in court via a “Wiretap Act”-style law; consider carving out new privileges for certain classes of data, akin to attorney-client privilege.
  • “There’s some data that probably should be privileged such that it can never be used against us.” (Ferguson, 22:00)
• Judges: Must reinterpret Fourth Amendment protections in light of new technologies and proactively set limits on what surveillance-derived evidence can be admitted.
  • Reference to Carpenter (SCOTUS cell site data case) and upcoming geofence surveillance case as crucial tests.

7. The Lure and Risks of Data Brokerage (27:05 – 32:20)

• Details legislative efforts such as the Fourth Amendment is Not for Sale Act, designed to close the loophole letting government agencies simply buy commercial data.
• Both parties—regardless of stated principles—have interests in expanding or protecting current surveillance powers.
• “If you build it, it will be used. And right now we’re building data collection systems everywhere in our lives … and yet we haven’t built systems about when that data can be used and for what purposes.” (Ferguson, 31:13)

8. The “Tyrant Test” — A Foundational Mindset (32:20 – 36:14)

• The “tyrant test” asks: If a tyrant could access your data, what protections would you want in place?
• Importance of proactive, non-partisan safeguards: “Assume the worst. Assume that the tyrant is reading your Google searches…has access to everywhere you drove and your heartbeat as you’re driving there.” (Ferguson, 32:36)
• America’s constitutional structure—built on distrust of centralized power—is the blueprint for enacting such safeguards in the digital era.

9. Trust, Surveillance, and Race (36:14 – 39:29)

• Surveillance’s harms have always disproportionately impacted black and brown communities; the current expansion reveals the danger of trusting in institutional restraint.
• “No one should have trusted it. Just look at who was targeted. But… what is interesting about this moment in history…[is] the recognition that no one probably should trust how police power can be misused.” (Ferguson, 38:00)

10. Optimism and the Path Forward (39:29 – 43:31)

• The present crisis provides a unique moment for bipartisan mobilization and legal reform.
• Judicial decisions (e.g., pending Supreme Court cases on digital searches), legislative action, and grassroots political advocacy are all still possible avenues for course correction.
• “All of this can be solved if the people in different legislative bodies wanted to do something about it. Some of this could be solved if judges wanted to do something about it.” (Ferguson, 42:45)

Notable Quotes & Memorable Moments

• On the Seduction of Surveillance Devices:
  • “The book talks about the seduction of self-surveillance… I’m not here trying to damn people… I understand it’s part of the seduction. There’s a reason why people have been convinced.” (Ferguson, 03:51)
• On Individual Power:
  • “As individuals, we are largely powerless against the data-driven technologies directed against us. But… the one thing the book is meant to do is to encourage people to get involved and get engaged.” (Ferguson, 15:34)
• On Legal Reform:
  • “There’s some data that probably should be privileged such that it can never be used against us.” (Ferguson, 22:00)
• On Trust and Power:
  • “The Bill of Rights in the Constitution was a distrust of federal power. It was a concern that by creating a U.S. constitution, we’d be replicating the issues that happened in Britain, which is why we had … the War of Independence.” (Ferguson, 37:21)
• On Crisis as Opportunity:
  • “Danger … now runs against everyone [and] is the kind of thing that can build a movement to change it.” (Ferguson, 42:45)

Important Timestamps

• [01:27] Introduction to Ferguson, his new book, and changes in tech & law since 2017
• [03:51] Discussion of the seduction and risks of self-surveillance in the home
• [06:10] Societal vulnerabilities: abortion rights, domestic violence, and data exposure
• [08:45] Breakdown of the Fourth Amendment’s failings in the digital era
• [11:36] The expansion of surveillance from marginalized targets to everyone
• [15:34] What individuals can realistically do; the importance of advocacy
• [20:31] Legislative solutions: focusing on evidence rules, wiretap analogies, privileges
• [25:15] Role of judges and the need for new judicial interpretations
• [27:05] Discussion of the Fourth Amendment is Not for Sale Act and government data buying
• [32:36] The “tyrant test” concept explained
• [36:14] U.S. constitutional tradition as a model for protecting against future abuses
• [39:57] Judicial action (or lack thereof) on surveillance and immigration enforcement
• [42:05] Closing: signs of hope and pathways for bipartisan action

Tone

The conversation is both urgent and analytical, blending legal analysis with stories and hypotheticals. Ferguson employs a calm but insistent tone, balancing institutional critique with practical advice and a measured optimism founded on democratic traditions and historical precedent.

Conclusion

This episode challenges listeners to reconsider what freedoms and safeguards are being eroded in exchange for convenience. Ferguson's “tyrant test” is positioned as both a warning and a practical guide. With legislative inertia and judicial inaction looming large, the real hope, says Ferguson, is in the possibility of a bipartisan awakening—spurred by the very dangers manifesting today. The question is not whether technology can help police, but whether democracy can survive unchecked, unregulated, ubiquitous surveillance.

The book, Your Data Will Be Used Against You: Policing in the Age of Self-Surveillance, is available March 17, 2026.