The “Founder’s Gaze”: How the Fourth Amendment is a Surveillance Technology that Enables AI to Scale Control Over the Subaltern

Diego H. Alcalá Laboy September, 2025

Abstract

Much has been written about the rise of artificial intelligence and machine learning applications and how the current Fourth Amendment law has been unable to mitigate the privacy harm that these tools produce. This article explores how the development and usage of AI and machine learning models is dependent on the originalism principles of Fourth Amendment Law. Utilizing Critical Surveillance Studies and Anticolonial Theory, I posit that the Fourth Amendment is a surveillance technology that categorizes conduct, persons, and places to impose the material conditions for the subjugation of historically minoritized communities within the United States. Furthermore, this article explores the interplay between the Fourth Amendment and these new technologies and how together, they scale the systematic harms for which the Fourth Amendment was intended to cause.

Introduction

The Fourth Amendment is thought of as the primary limitation guarding society against unreasonable governmental encroachment. This encroachment is considered “[an] invasion of [the] indefeasible right of personal security, personal liberty and private property.”¹ The Fourth Amendment is said to strike a balance between a fair and free society and the governmental interest in executing legitimate police powers through two distinct jurisprudential theories: the common law trespassory doctrine and the reasonable expectation of privacy doctrine. I concede that the Fourth Amendment is working precisely as intended. Nevertheless, I propose a counternarrative: the Fourth Amendment is, itself, a surveillance technology. By technology, I do not refer to the latest phone, computer, ChatGPT, or any specific tool, but rather a “manner of accomplishing a task, especially using technical processes, methods, or knowledge.”²

The Fourth Amendment categorizes, monitors, and controls who, where, when, how and why certain people are policed thereby facilitating the exclusion of minoritized communities from fully participating in society. Its reliance on originalism ensures the continual imposition of founding-era values, described by anticolonial scholars as a settler-colonial, an ongoing process in which a settler comes to an already occupied land with the intent of making a new home and claiming sovereignty over all things in their new domain.³

When faced with the challenges posed by the surveillance practices used by law enforcement, the U.S. Supreme Court employs an originalist methodology, identifying what was deemed unreasonable when the Fourth Amendment was adopted. From this historical perspective, the Court is guided by two complementary principles: that the Fourth Amendment tries to secure a person’s “privacies of life” against “arbitrary power”⁴ and that the Framers tried “to place obstacles in the way of too permeating police surveillance.”⁵ The Court’s pragmatic approach provides flexible guardrails to ensure the effective administration of legitimate state objectives, while ensuring the privacy interests of its subjects are protected or infringed as minimally as possible.

Through an interdisciplinary approach, I argue that the Fourth Amendment establishes distinct levels of protection dependent on its defined categories, and in turn serves a dual purpose: to make a person both hypervisible and invisible, contingent upon a state’s objective. Furthermore, empirical research supports the claim that these categories crafted by Fourth Amendment law prevent traditionally marginalized groups from achieving full societal participation. I will analyze how this categorization has assisted the accelerated development and deployment of many of the surveillance technologies used by law enforcement today. These technologies, which are marketed as neutral, are themselves guilty of reproducing and facilitating harm to vulnerable communities, as “inequity is coded into their algorithm.”⁶

Part I of the article identifies how surveillance studies scholars define surveillance. Part II will examine how critical scholars in surveillance studies have employed distinct approaches to highlight the power relations and practices that perpetuate subordination strategies of marginalized communities. Finally, in Part III, I will show how the Fourth Amendment functions as a surveillance technology that ensures the imposition of settler colonial values to limit or exclude marginalized communities from full civic participation, while facilitating the development and deployment of new surveillance technologies to scale this marginalization. This article challenges the reader to reconceptualize the current liberal order that claims to address the severe harm produced by technological developments. However, this article does not provide a resolution to the critiques identified in this piece.⁷

I. Surveillance studies

The rapid rise of surveillance prompted scholars to focus their attention on how these practices impacted their respective fields of study. Surveillance is sometimes used to refer to a sub-topic in distinct fields, such as: privacy, urban planning, governance, policing, safety and security, and media studies, among others.⁸

The term surveillance is defined as the “focused, systematic, and routine attention to personal details for influence, management, protection, or direction.”⁹ This definition implies that surveillance is not accidental but rather targeted at an individual or group selected according to somebody’s established criteria and parameters.¹⁰ Some scholars argue that surveillance as a practice is not malevolent.¹¹ Most surveillance is “practiced with a view of enhancing efficiency, productivity, participation, welfare, health or safety.”¹² However, surveillance is also a key feature as to how the state produces distinct ways to classify and record its citizens and create the regulations that become rationalized and formalized in new ways.¹³ Because state surveillance requires a continued process of categorization, surveillance, collection, and analysis of information, it could be considered the mechanism that allows the State to define who is considered a citizen or a member of that society and what rights and obligations that person is afforded accordingly.¹⁴

Surveillance scholars have described a dramatic shift in technology that has expanded the range and dearth of surveillance capabilities held by both state and non-state actors. Wiretaps, high-resolution audio and video digital equipment, and GPS monitoring devices are some traditional tools used by law enforcement in surveillance operations; these tools have been greatly improved by technology.

A. New Technologies

Nevertheless, new technologies are much broader than traditional surveillance technologies; they are not limited to the devices used in the routine one-on-one, small-scale targeted surveillance conducted by the police in covert operations.¹⁵ Rather twenty-first century surveillance practices are characterized by the large-scale, systematic, automated, and computer-aided collection of data.¹⁶ These are enhanced by searchable databases that aid in the storage, retrieval, and analysis of relevant data.¹⁷ In this broader sense, surveillance can be summarized as “the use of technological techniques or devices to detect attributes, activities, people, trends, or events.”¹⁸

These practices and technologies are a by-product of the expansive growth of accessibility to personal data. This flow of information was first fueled by developments in computer and telecommunication technologies in networks throughout the 1970s.¹⁹ For example, the adoption of Electronic Fund Transfers in retail stores allowed for faster commercial transactions, creating a massive flow of personal information between multiple commercial entities.²⁰ This information was stored, shared, and analyzed by these corporations to increase their profits. The development of the Internet in the 1990s facilitated a second major turning point, as it provided corporations, agencies, and other actors access to information from those who relied on the Internet for information, the acquisition of goods and services, and entertainment.²¹ Businesses went out of their way to learn their customers’ buying and personal habits to increase their market share.²² The third landmark event was the adoption of the cell phone by businesses and people as the preferred communication method. The mobility of the device not only enabled commercial and social transactions to occur remotely, but more importantly, it provided companies with the user’s exact location.²³

While the flow of personal data was facilitated by the adoption of new commercial technologies, it was its commodification that fueled the growth of this market amongst corporations, government entities, and other actors, both nationally and internationally.²⁴ For example, every purchase made with a credit card is monitored, stored, analyzed and sold to those interested in the person’s shopping habits to advertise more products, or to banks can use this data to determine a person’s credit worthiness.²⁵ This expansive flow of information along with superior computer technologies enabled entities in positions of power to deploy surveillance systems that aggressively collect, share, and aggregate data.²⁶ The business opportunities associated with this commodification fueled the research and development of multiple technologies with commercial surveillance applications that were focused on our everyday behavior, relationships, and physical environments which are datafied, modeled, and profiled for profit.²⁷ The rapid development and deployment of new technologies makes surveillance difficult to identify, analyze, and regulate.²⁸

These new tools ordinarily rely on network technologies to develop new surveillance techniques, such as data mining and profiling.²⁹ The use of algorithms and advanced mathematical concepts produces new insights that are qualitatively different from the observations gathered through earlier surveillance tactics, which recorded only what could be captured by traditional senses.³⁰ The collection of data is much more complex, as it aims to correlate new insights from the cross-analysis of various data sources extracted from a population, not just an individual, and hence is not limited to traditional spatial limitations as earlier surveillance technologies.³¹ The underlying premise for this new technology is the idea that a single collected data point may not produce any new insight as to a particular individual, but millions of data points from past events extracted from a population could be used to make predictions and inferences about the future conduct of an individual.³² New surveillance technologies “are far more omnipresent and often presumed omnipotent.”³³

The use of new surveillance technologies allows the state and other powerful entities to create “predictions” modeled by the data extracted from persons, behaviors, activities, and even from the very spaces they populate, to impose measures meant to modify our behaviors, and to define who can or cannot be permitted to participate in certain activities.³⁴

B. Critical Surveillance Scholarship

Critical surveillance scholars recognize that the study of surveillance is, by necessity, the study of power relationships.³⁵ Unlike their counterparts, these scholars reject the neutrality associated with surveillance and aim to expose how power relations are enabled by the classifications associated with surveillance.³⁶ Critical surveillance scholars emphasize how surveillance, used to “see” or “register,” according to the classifications developed by those in power, also necessarily exempts, obscures, and makes those deemed to be “undesirables” disappear.³⁷

1. African American Studies

Racial surveillance is a concept developed to counter the idea that surveillance is neutral.³⁸ According to Professor Simone Brown, it is a technology of social control where surveillance “concerns the production of norms pertaining to race and exercises a ‘power to define what is in or out of place’.”³⁹ Professor Brown further expands by informing that racial surveillance upholds practices that were brought to America during the European colonial expansion and the transatlantic slave trade, whose social order privileged whiteness.⁴⁰ The norms and practices of the colonial era created a “cumulative white gaze that functioned as a totalizing surveillance”, that continues present today.⁴¹ For example, in the colonial era, sheriffs routinely deputized the citizenry to apprehend the fugitive slaves that escaped bondage. Today, this dynamic is reproduced whenever law enforcement bypasses the constitutional requirements of the Fourt Amendment by directly purchasing location data – such as places of worship, medical facilities, labor unions, and political rallies – that has been collected, stored and aggregated by data brokers specifically for law enforcement.⁴² Professor Browne proposes that to counter these existing racialized surveillance practices, one should look at the historical modes of resistance developed by those affected by these practices during those times.⁴³

2. Feminist Theory

Critical feminist studies have also questioned surveillance. Feminist surveillance scholars directly reject neutrality by exposing the imperatives obscured in data collection practices, the interests that benefit from these imperatives, and the ways that data is used.⁴⁴ While feminist surveillance scholars recognize the vast scholarship on the impact these new technologies have on privacy, they note how this literature fails to acknowledge that privacy is not equally enjoyed by those affected by these technologies. They posit new questions to utilize when interrogating the impacts of these new technologies. For example: Who has a right to privacy? Whose privacy is not a concern, and why? Feminist scholar Rachel Hall notes how a focus on the impact of surveillance and “privacy” has failed to protect vulnerable communities from patriarchal violence, which often occurs in the “safety of the home”.⁴⁵ Feminist surveillance scholars⁴⁶ also promote the use of new methodological methods, such as institutional ethnography developed by the feminist scholar Dorothy Smith,⁴⁷ to analyze surveillance practices to show how surveillance documentation is gendered,⁴⁸ racialized,⁴⁹ sexualized,⁵⁰ and classed.⁵¹

3. Anticolonial Theory

Another approach to surveillance study is the integration of an anticolonial analysis. Anticolonial theory developed alongside the growing liberation movements demanding self-determination that emerged post- World War II. It examines the constitution of hierarchies imposed by a colonizing entity against a “native” population. To accomplish this, anticolonial theory identifies and debunks the ideas and principles that naturalize the colonization process and seeks to explain how these hierarchies grew in these colonies.⁵² As approached by Professor Andrea Smith, the system of settler colonialism imposed surveillance to create the State.⁵³ Through this lens, prevalent scholarship fails to question the colonial violence of surveillance and thus, does not question the State itself. Instead, these traditional surveillance scholars propose to reform the means and ways the State surveils.⁵⁴ Scholarship in anticolonial surveillance studies rejects this reformist approach and instead identifies the practices implemented during the colonial period to ensure the creation of the state. While traditional scholars may propose ways to regulate the use of facial recognition, critical scholars will want to ban this technology altogether, as the harms it produces does not outweigh any quantifiable benefit. Leading scholar David Lyon characterizes surveillance as “seeing people,” through a “watchful gaze,” giving surveillance its “quintessential characteristics.”⁵⁵ Anticolonial scholars repurpose the “watchful gaze” metaphor by arguing that surveillance serves a dual purpose: to make people both hypervisible and invisible, depending on the state’s given objective.⁵⁶

Hypervisibility can be clearly understood as the monitoring, accounting, measuring, and disciplining of those considered to be “other.” For example, many members of the tribal nations were forcefully subjected to oppressive forms of control, such as displacement, indefinite detention, and many had their children stripped away and placed in boarding schools designed to “[k]ill the Indian in [them] and save the man”.⁵⁷ These “civilizing” norms practiced by the settler colonial state apparatus required the constant surveillance of the entire native population.⁵⁸ Indigenous people were, at the same time, made invisible for another crucial state objective, enabling the settler State to gain possession of indigenous land. This invisibility was crystallized early in the 19th century in Johnson v. M’Intosh ,⁵⁹ where the Supreme Court adopted the international law doctrine of “discovery” which gave title over land to the government that “discovered” it against all other European governments. By erasing the Indigenous, title to the land which had been previously occupied, and cared for by a pre-existing Peoples, was taken. This type of dynamic (hypervisible/invisible) currently plays out in other areas as well. For example, low income households with less than $25,000 in annual earnings who are recipients of the earned income tax credit,⁶⁰ one of the country’s most aggressive anti-poverty programs,⁶¹ are five times more likely to be audited by the Internal Revenue Service than anyone else.⁶² Similarly, in an effort to curb intimate partner violence, many states implemented mandatory arrest polices leading to a sharp increase in the number of women arrested for violence, many who are the victims of their accusers.⁶³ Simultaneously, when it come to the prosecution of public officials, the bar is extremely high. Recently, an ideologically divided court overturned the conviction of a public official who had accepted kickbacks as a reward for steering city contracts to a private individual,⁶⁴ based on a very narrow interpretation of the federal antibribery and gratuity statute.⁶⁵ For anticolonial surveillance scholars, surveillance is not limited to what is seen. Rather, it also intends to make the people that may delegitimize the State disappear, along with their customs, practices, and traditions.⁶⁶

4. Critical Studies and Artificial Intelligence

Scholars have also applied critical analysis to artificial intelligence (“AI”) technologies, rejecting the “neutrality” of AI.⁶⁷ As Professor Benjamin declared, “today coded inequity is perpetuated precisely because those who design and adopt such tools are not thinking carefully about systemic racism.”⁶⁸ Scholars note that the applications that deploy AI employ tactics may be exploitative in distinct ways, including algorithmic oppression, or the subordination of one population over another “through automated, data-driven and predictive systems”.⁶⁹ An example is the use of algorithmic decision models, such as predictive systems used by the courts to predict a person’s “dangerousness” as a factor for sentencing purposes or to assist in making bond determinations.⁷⁰ Although these predictive systems were developed to remove bias from the decision process, evidence shows that the data used to train and improve these systems is extracted from historical data produced and held by the police, reproducing police biases.⁷¹ And hence, the reliance of these predictive systems amplify existing social disparities, such as increase mistrust between the community and the police, and the continuation of the mass incarceration crisis.⁷² Another category identified as algorithmic exploitation looks at the ways institutions that control AI and their algorithmic tools to take advantage of people (often those most marginalized) for institutional gain.⁷³ Examples of this practice are observed when exploring the ways these organizations export labor-intensive practices onto workers from a location with limited labor protections. This allows the organization to lower the development cost of their product while exporting any labor, ethical, or medical issues that may arise. For example, Open AI, the makers of ChatGPT, valued at $157 billion as of Oct. 2024, pays $2.00 per hour to Nigerian workers for content moderation.⁷⁴ Similarly, organizations that control these instruments routinely employ marginalized communities to assess their products. For example, analytics company Palantir, along with the New Orleans Police Department, deployed predictive algorithms that primarily targeted the city’s Black population and enhanced police surveillance without any public oversight.⁷⁵

Algorithmic dispossession describes how regulatory policies facilitate the centralization of information, assets, and power to a minority, while simultaneously depriving power, assets, and rights from a majority.⁷⁶ A clear example of this dynamic was at play during a recent White House event held to discuss AI regulations, which included the CEOs of almost every major AI developer.⁷⁷ The meeting famously did not include any AI ethics researchers, civil rights and human rights organizations, and gave the impression that it was meant to ensure that the voices of the powerful were heard.⁷⁸

The use of anticolonial theory to analyze how new technologies produce harms broadened the analysis of AI by providing additional tools of inquiry, and to clarify the distinct difficulties AI tools present. In an equivalent way, the use of anticolonial theory can lead to a more robust discussion about the way the Fourth Amendment helps perpetuate disparate harm to historically marginalized groups in our society.

II. Defining the Fourth Amendment as a surveillance

The Fourth Amendment is traditionally described as a primary feature of the Constitution ensuring the “principles of free government.”⁷⁹ But in reality, it is a limitation. It guards society against unreasonable governmental encroachment that is considered “[an] invasion of his indefeasible right of personal security, personal liberty, and private property”.⁸⁰ Unconstrained access to a person or his property “may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom.”⁸¹ Thus the Fourth Amendment serves an important liberal political theory objective: to control the power of the State.

The Fourth Amendment tries to balance between a fair and free society and the governmental interest in executing legitimate police powers. In doing so Fourth Amendment jurisprudence classifies conduct into specific categories, each with a delineate, and oftentimes, limited level of constitutional protections. The Supreme Court defines these categories relying principally on what it believes was the historical application of the category it seeks to define, and it establishes baseline rules that are binding on all federal, state, and local jurisdictions, thereby modifying the conduct of all actors within those. These classifications inform what conduct will and will not be tolerated when performed by government agents. The Court’s pragmatic approach provides flexible guardrails to ensure the effective administration of legitimate state objectives while ensuring the privacy interests of its subjects are protected or infringed as minimally as possible.

There are at least four major categories defined by Fourth Amendment law: (1) breaches based on proprietary rights, (2) the public/private space distinction, (3) the public/private category of the actor who commits the violation, and (4) who has a right to claim a violation.⁸² These categories are shaped and molded by many factors, including challenges to the use of surveillance practices and technologies by law enforcement, changes to statutory criminal law, and the interpretations of criminal statutes. In all, the courts apply a classification algorithm to determine the applicability of the Fourth Amendment, and the corresponding protection. Borrowing Professor Lyon’s definition of surveillance, the Fourth Amendment is a key feature as to how the state produces distinct ways to classify and record its citizens and create the regulations that become rationalized and formalized in new ways.⁸³ Surveillance, like the Fourth Amendment, “is not itself sinister”,⁸⁴ as it is “practiced with a view of enhancing efficiency, productivity, participation, welfare, health or safety”.⁸⁵

But from a anticolonial theory paradigm, the neutrality of the Fourth Amendment is rejected. Instead, the Fourth Amendment is akin to surveillance, a technology of social control “concern[ed] [with] the production of norms pertaining to race and exercises a ‘power to define what is in or out of place’.”⁸⁶ In this manner, the Fourth Amendment enforces a specific social and political hierarchy, one that is gendered, racialized, sexualized, and classed.⁸⁷ Like surveillance’s “watchful gaze”, the Fourth Amendment determines whose conduct is “seen”, determines who will be free from State interference, and determines who may delegitimize the State. It imposes the colonial practice of determining who is hypervisible and who is invisible. In its core, the Fourth Amendment facilitates the State’s dual goal of spotlighting and disappearing the “Other”, cutting them off from any form of civic participation that may be perceived to upset the preordained hierarchy.⁸⁸

A. What is a Search? Olmstead and Katz

As mentioned, the emergence and maturation of these Fourth Amendment categories were influenced by the way the Supreme Court legitimated surveillance practices and technologies.

In 1928, in Olmstead v. United States, the Court rejected a challenge to a government search performed under the Fourth Amendment where the government had surreptitiously wiretapped telephonic conversations of the defendant.⁸⁹ Even though wiretapping was illegal in the state of Washington,⁹⁰ the Court concluded that without a physical trespass onto the defendant’s property, there could be no search, and therefore, no constitutional violation under the Fourth Amendment. “There was no searching. There was no seizure.”⁹¹ The decision validated a practice undertaken by agents⁹² of the by the Federal Bureau of Prohibition,⁹³ the agency responsible for enforcing the prohibition on the manufacturing, sale and transportation of alcohol beverages,⁹⁴ to curb these vice crimes. Although the agency was in the clear to continue to use wiretaps, the number of wiretap operations conducted by this agency is unknown, possibly because it deliberately omitted documenting it in their reports.⁹⁵ Nevertheless, wiretapping was considered by many not just unconstitutional, but as “indecent, immoral, odious, dishonorable and despicable.”⁹⁶ The opinion’s political impact was swift. A few years after the Olmstead decision, Congress⁹⁷ prohibited the practice amongst federal law enforcement.⁹⁸

The Olmstead decision cannot be seen in a vacuum. Just a decade earlier, in preparation for World War I, the US government entrenched itself into the national economy from civilian goods to war goods, fostering the creation of an expanded bureaucratic state.⁹⁹ The end of the Great War had an incredible impact on the economy mostly as a result from the relaxation of price control measures taken by the government during the war period. ¹⁰⁰ From 1919 – 1920, the cost of living index increased by 22% resulting in a noticeable drop in worker’s purchasing power.¹⁰¹ In response, labor took to the streets. In 1919 alone, more than 4 million workers from dozens of industries paralyzed major industrial hubs.¹⁰² The economic uncertainty caused by the transition from a war economy to a consumer economy was not the only cause for agitation. Many social factors came to the forefront and converged in this same period.

The 1915 screening of the movie Birth of a Nation at the White House invigorated the revival of the terrorist group the Ku Klux Klan,¹⁰³ whose popularity peaked on August 8, 1925, where 30,000 hooded persons paraded onto Pennsylvania Avenue in Washington D.C.¹⁰⁴ The confluence of the Great Migration¹⁰⁵ and the demobilization of thousands of African Americans from the Armed Forces at the end of WWI,¹⁰⁶ saw Blacks seek to integrate communities outside of the Southern states, only to be met with swift and sometimes violent pushback.¹⁰⁷ In the summer of 1919, coined by civil rights activists as the “Red Summer”¹⁰⁸ dozens of cities were the scene of white-on-black race riots and massacres.¹⁰⁹ Violence was not only motivated by racism,¹¹⁰ but also by pleasure,¹¹¹ paranoia,¹¹² and as a response to a breach of the terms of America’s contractual whiteness.¹¹³ Blacks experienced genocidal violence whenever there was a threat to white supremacy in the political, economic and social domains.¹¹⁴

Domestic turmoil was not constricted to racial animosity. The Bolshevik revolution in Russia and successive communist victories in some Eastern European countries triggered a fear of communism reaching the United States and overthrown the liberal capitalist society.¹¹⁵ In response to a series of violent events by anarchists,¹¹⁶ the U.S. Government instituted a series of legislations¹¹⁷ aimed to weed out any threat (real or imaginary) from the anarchists, communists and socialists, many who had emigrated into the United States.¹¹⁸ This panic was never more poignant than by the infamous Palmer raids, which targeted suspected “radicals” for arrests, prosecution, and subsequent deportation.¹¹⁹ This governmental operative was immediately rebuked as many of those who were arrested were not only innocent, but arrested in violation of established constitutional protections.¹²⁰ Imperialism and isolationism were entrenched in American foreign affairs. After the Allies defeated the German forces, the Senate failed to ratify the Treaty of Versailles¹²¹ in part because the United States would “give up too much power” to the League of Nations.¹²² The Insular cases,¹²³ based on racist foundations, implemented the legal foundation for the subjugation of the people of the acquired colonies of Puerto Rico and the Philippines.¹²⁴

As Professor Russell W. Galloway Jr. described of the times: “[t]he hallmarks of the immediate post-war period were anti-subversive witch hunting, racial persecution, “America-first” isolationism, prohibition, economic conservatism, and strong anti-labor sentiment.”¹²⁵ The nation overwhelming elected the conservative Republican Warren G. Garfield in the 1920 presidential election after he championed the return of small government and a return to “business as usual”.¹²⁶ Seizing the moment, he appointed conservative justices, including former President William H. Taft to serve as Chief Justice, to help steer his conservative political agenda. The Taft Court, the period between 1920s – 1930, the Supreme Court instituted a constitutional conservative activism.¹²⁷ It championed the second laissez faire period of the court. This was marked by Adkins v. Children’s Hospital ,¹²⁸ a decision where the Court ruled unconstitutional a progressive legislation that provided a minimum wage to women and children in the District of Columbia. To the Court, this law infringed on the rights of employers and employees to negotiate their wages, and hence infringe on their freedoms. This decision validated the conservative legal view of a hierarchical approach to liberty interests.¹²⁹ As articulated by the lower appellate in Adkins ,

“[i]t should be remembered that of the three fundamental principles which underlie government, and for which government exists, the protection of life, liberty, and property, the chief of these is property … when the citizen is deprived of the free use and enjoyment of his property, anarchy and revolution follow, and life and liberty are without protection.”¹³⁰

Olmstead was decided by a Court that openly advanced a conservative legal agenda that attached property interests to constitutional protections. The common-law trespass doctrine cemented the connection between property and the Fourth Amendment. The maxim that ‘every man’s house is his castle’ represents the pinnacle of protection offered under the amendment.¹³¹ This rationale validated the government’s continued use of warrantless surveillance practices that did not amount to a trespass.¹³² The protection also extends to a property’s curtilage,¹³³ but not to an open field,¹³⁴ thereby softening the heightened protections that property rights may confer on a person’s property.

The applicability of Fourth Amendment protections based on breaches to property rights was the law of the land for much of the 20 century. Almost 40 years after Olmstead , the Supreme Court would re-examine this doctrine in another surveillance technology case. In Katz v. United States , the Court overruled Olsmstead .¹³⁵ In doing so, the Court rejected the government’s argument that no Fourth Amendment violation occurred because there was no common law trespass when it placed a wiretap on top of a public phone booth to record a private conversation without a warrant.¹³⁶ The shift gave way to a new test for determining if a Fourth Amendment violation occurred—the “reasonable expectation of privacy test.” To determine whether the Fourth Amendment was violated, the Court first examined whether the person exhibited an actual expectation of privacy, and then analyzed whether that expectation was one that society was prepared to recognize as reasonable.¹³⁷ The definition of “reasonable to a society” depended on “the uses to which the individual has put a location, and . . . our societal understanding that certain areas deserve the most scrupulous protection from the government invasion.”¹³⁸ Using this privacy-centric approach, the Court determined that Mr. Katz had a legitimate expectation of privacy when communicating with another person on a telephone line from inside a public phone booth, and that society was willing to recognize his expectation as reasonable.¹³⁹ Katz still recognized that the Fourth Amendment was not applicable in situations where information is publicly exposed, “even in his own home or office,”¹⁴⁰ or observed from a flying airplane hovering over your property at 1,000 feet,¹⁴¹ but it did recognize the possibility of extending Fourth Amendment protections from searches or seizures of things that a person intended to keep private, even when in public. The Court extended Fourth Amendment protections, albeit diminished ones, in situations where there is a strong governmental interest for a warrantless search. For example, the Court has recognized that decreased privacy protections apply to probationers,¹⁴² parolees,¹⁴³ prisoners, prison visitors, students, and those entering the country through an international border,¹⁴⁴ among others.

Katz was important for another reason. Just six months earlier, the Court invalidated an overly broad New York statute that regulated the state’s wiretap process because it violated the Fourth Amendment. In Berger v. NY ,¹⁴⁵ the Court described the practice as “[t]he awkwardness and undignified manner of this method,” ¹⁴⁶ and detailed its historical rebuke.¹⁴⁷ But in Katz , the Court expressly authorized the use of wiretapping (as well as other surveillance technologies) as a legitimate investigative method by applying the warrant standards to ensure judicial authorization for a wiretap.¹⁴⁸ As understood by the Supreme Court, at the time of the adoption of the amendment, what a government agent could hear or see was not afforded any protection under the Fourth Amendment. This outcome presupposes that a person forfeits any protection from exposure because he would have otherwise taken precautions to avoid the disclosure. This rationale was also extended to apply to instances where the person voluntarily shares information with a third party for commercial, transactional, social, or legal reasons, and that third party then reveals the information to the government.¹⁴⁹ If there is an exposure under those circumstances, there cannot be a constitutional violation.

B. Digital Technology and the Fourth Amendment

In the post- Katz era, the Supreme Court has struggled to clearly resolve how the evolving nature of surveillance practices and associated technologies impact these Fourth Amendment categories.¹⁵⁰ Although it has cautioned against their indiscriminate use,¹⁵¹ current Fourth Amendment law principally addresses improvements to traditional surveillance practices and technologies as opposed to new technologies that rely on network technologies to develop new surveillance techniques, such as data mining and profiling.¹⁵²

For example, in Kyllo v. United States, ¹⁵³ the Court concluded that the use of sense-enhancing technology in a constitutionally protected area was a search subject to the warrant requirement, at least where the technology used “is not in general public use.”¹⁵⁴ Then in United States v. Jones, ¹⁵⁵ the Court invalidated the unwarranted use of a GPS tracking device on a vehicle to monitor its movements for 28 days. Although the Court’s opinion relies on the common-law trespass doctrine,¹⁵⁶ five concurring Justices agreed that “longer term GPS monitoring . . . infringes on expectations of privacy.”¹⁵⁷ The police’s secret monitoring and cataloging of every movement of an individual’s car for a long period would not be compatible with “society’s expectation” of traditional police surveillance practices.¹⁵⁸ In Riley v. California ,¹⁵⁹ the Court overturned a conviction because the defendant’s cellphone was searched without a warrant. In doing so, it recognized the technological improvements to the cell phone, giving it unique capabilities such as its “immense storage capacity” and “pervasiveness nature,” which offered the government access to a person’s historical location information, web browser searches, and data from other applications, which may provide the government with an insight as to a person’s religious, economic, cultural, and political beliefs, in sum a person’s “privacies of life.”¹⁶⁰

Finally, in Carpenter v. United States ,¹⁶¹ the Court concluded that an unwarranted government’s request to obtain cell-site location information (CSLI) from a third party was unconstitutional. Applying Jones , the Court recognized that a person holds a reasonable expectation of privacy in his movements and that society’s expectation was that the State would not and could not “secretly monitor and catalogue” a person’s movements.¹⁶² By focusing on the quality of information requested by the government, the court reasoned that CSLI was an “all-encompassing record of the holder’s whereabouts . . . [that] provides an intimate window into a person’s life, revealing through . . . them a person’s ‘familial, political, professional, religious, and sexual associations.’”¹⁶³ It declared that when the government has access to a user’s CSLI, “it achieves near perfect surveillance.”¹⁶⁴ Although the court limited its ruling to cell-site location information,¹⁶⁵ some lower courts understand that Carpenter created a distinct line between short-term tracking of public movements and prolonged tracking which can reveal a person’s “privacies of life.”¹⁶⁶

In sum, the use of technology in surveillance practices has forced the courts to evolve and expand their understanding of Fourth Amendment law. The location and length of a surveillance, the type of information targeted, and the sophistication and pervasiveness of the technology used are some of the factors that the courts will examine when determining if a Fourth Amendment violation occurs. These decisions created barriers for law enforcement to conduct searches when dealing with digital technologies. “Near-perfect surveillance” that exposes the “privacies of life” is unbecoming.

But the question is, unbecoming for whom? As feminist scholars have already noted, privacy rights are not equally enjoyed.¹⁶⁷ The post- Dobbs ¹⁶⁸ rush by many states to criminalize abortions¹⁶⁹ has made digital data an instrumental piece of prosecution.¹⁷⁰ The monitoring of domestic pro- Palestine protests, abortion related protests, and Black Live Matters protesters by local law enforcement, the FBI, Homeland Security, and the National Counterterrorism Center¹⁷¹ is reminiscent of the COINTELPRO operations from past eras,¹⁷² which targeted Black Nationalists,¹⁷³ Native American activists,¹⁷⁴ Puerto Rican Nationalist Movements,¹⁷⁵ amongst many others.¹⁷⁶ These are just some examples of the long history of the United States using surveillance against the “Others.” In the above discussed digital technology cases, the Supreme Court recognized the technological distinction of the instruments used by law enforcement in their surveillance practices and highlights it ubiquitous nature, whereby everyone, including those in the highest strata of the hierarchical society the Fourth Amendment protects, will be impacted by the outcome. As in Bond v. U.S .,¹⁷⁷ where the unwarranted physical manipulation of luggage was ruled to be an unconstitutional search, the Supreme Court embrace of privacy above law enforcement interests is an example of what Professor Derrick Bell defined as interest convergence theory, “temporary ‘peaks of progress,’ short-lived victories that slide into irrelevance as racial patterns adapt in ways that maintain white dominance.”¹⁷⁸ As mentioned, the Supreme Court has not addressed how new technologies alter the aforementioned classifications, but it is probable that these “advances” soon become irrelevant as the Fourth Amendment “adapts in ways to maintain white dominance.”

C. Statutory Factors

Another factor in the way these categories are defined is due to changes to statutory criminal law. For example, the legal theories promoted by the American Institute of Law played a significant role in expanding the scope of conduct that could be criminalized.¹⁷⁹ The elimination of the impossibility defense¹⁸⁰ and the adoption of the subjective criminality theory in inchoate offenses¹⁸¹ permitted law enforcement to arrest a person based on the actor’s state of mind at the time of the attempted offense. This shift allowed for the more prosecutions and convictions as they were no longer dependent on whether the crime itself was factually possible to complete and could find guilt from a broader range of preparatory steps.¹⁸² As Professor Luis Chiesa notes, although the adoption of the subjective criminality theory was considered progressive at the time,¹⁸³ this theory had been adopted by the Nationalist Socialist regime in Germany, effecting “a criminal law aimed at identifying and eliminating socially undesirable individuals, including homosexuals, vagrants, Gypsies, Jews, and anyone else who did not embody the National Socialist idea of a person.”¹⁸⁴ Similarly, the adoption of the unilateral conspiracy theory made it easier for the government to arrest and convict persons as it expanded conspiracy liability to instances in which a person “agrees” to engage in criminal conduct with another (usually an undercover police agent or government cooperator), even though the “co-conspirator” had no intention to participate in the conspiracy.¹⁸⁵ These theories permitted the adoption of a racialized criminal law focused on identifying dangerous persons, as opposed to punishing of criminal conduct under traditional theories of criminal law, leading to the disproportionate incarceration of “Others.”¹⁸⁶ The same underpinnings for the changes promoted through the Model Penal Code can also explain the prevalence of the use of possession offenses as a means of social control.¹⁸⁷ These changes have “allowed the ruling classes … to use the criminal law as a vehicle for controlling segments of the population deemed threating.”¹⁸⁸

Statutory interpretations also help define the way these classifications operated. For example, in some jurisdictions, evidentiary challenges to the of the introduction of a recorded conversation were dismissed, and soon thereafter law enforcement began to justify surveillance on this one-party consent rule to record conversations within a constitutionally protected area.¹⁸⁹ But the genesis of this practice stems from a patriarchal desire to control property. Men who suspected “their” women of adultery used secret wiretaps, hoping to catch them in adulterous relationships to confront their partners, and for use in any future divorce proceeding.¹⁹⁰ Employers were also quick to adopt the practice to intrude on the lives of their employees and to suppress any indicia of labor organization, all under the guise of protection of property.¹⁹¹

One particularly important piece of legislation that expanded the use of surveillance by law enforcement was the Omnibus Crime Control and Safe Street Act of 1968.¹⁹² The law not only regulated the use of wiretaps by law enforcement authorities, but it also increased funding for law enforcement and regulated the interstate purchase of handguns. Just one year prior to its passage, over 150 race riots had erupted across America primarily in Black neighborhoods in resistance to institutionalized white supremacy.¹⁹³ As the Kerner Commission reported:

“What white Americans have never fully understood—but what the Negro can never forget—is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.”¹⁹⁴

Instead of following the recommendations of his own Kerner Commission, which called for a substantial federal investment in Black America in the areas of education, employment, housing, welfare, and police-community relations aimed to curb racial violence,¹⁹⁵ President Johnson capitulated to the political attacks from Republicans and Southern Democrats for being soft on crime. One of the most vocal advocates for law enforcement was Senator John L. McClellan, a Democrat from Arkansas and an ardent segregationist who believed that wiretaps on African American civil rights leaders to maintain the social order.¹⁹⁶ He openly advocated for the expansion of surveillance technologies to be used against Black Militants, seen by many conservatives as the primary force behind upsetting the America’s racial hierarchy.¹⁹⁷ Eventually, Senator McClellan’s dog-whistle calls to surveil Black America drowned out social justice advocates and civil libertarians.¹⁹⁸ The Omnibus Crime Control and Safe Street Act of 1968 removed any restriction on the use of wiretaps, expanding its use from national security, to organized crime, and more importantly, “street crimes.” The expansion into street crime allowed law enforcement to target “high-crime areas,” a euphemism for inner-city Black neighborhoods.¹⁹⁹

Statutory innovations and judicial interpretations constitute an important exercise in the categorization process of Fourth Amendment Law, as they present an opportunity to adapt to new and unforeseeable shifts in conduct. Timely interventions of this nature ensure that social relations are regulated through constitutional criminal procedure.²⁰⁰

III. Categorizing the Fourth Amendment

The Fourth Amendment is a surveillance technology that plays an integral role in enforcing settler colonial practices that subordinate entire communities through the imposition of rules that facilitate the identification, monitoring, denial, exclusion, and removal of opportunities in society. At the same time, Fourth Amendment law has been instrumental in the development and deployment of new surveillance technologies used by law enforcement to accelerate and scale the monitoring, control, and subordination of these already marginalized communities. From this paradigm, the Fourth Amendment is a technology that relies on surveillance to classify those it targets, imposing a racialized, gendered, classed, able-bodied view that conforms to the European settler-colonial, Christian, capitalist values of modernity. Using this paradigm, I will examine two of the identified Fourth Amendment law categories to highlight how they help maintain marginalized populations subjugated and identify how new surveillance tools are used to scale this outcome.

A. Propertied

From the offset, Fourth Amendment law was tied to a proprietary right. Its jurisprudence originally distinguished between governmental incursions that did or did not interfere with real or personal property. Before Katz, not only did the inquiry inform whether there was an actual governmental intrusion, but more importantly, it excluded parties that did not have the means to procure property. Proprietary rights were the exclusive province of white heterosexual men.²⁰¹ When the Fourth Amendment was adopted, a significant part of the population was not considered persons, but property, and many other persons were considered incapable of exercising civil and political rights.²⁰² These exclusions comprised members of the Five Nations and other tribes,²⁰³ slaves, free Black persons, women, children, persons deprived of liberty, persons who were homeless, persons who suffered from a mental disease, LGBTQ community members, and others. Exclusionary practices did not stop after Emancipation. On the contrary, new mechanisms were instituted to ensure that property continued to be held by those in power. The exclusion of minorities’ access to real property has been thoroughly documented. Jim Crow segregation and racially discriminatory real estate and lending practices systematically excluded minorities from owning houses.²⁰⁴ This, when coupled with other discriminatory labor practices²⁰⁵ and educational exclusion,²⁰⁶ contributed to the racial wealth gap among Americans.²⁰⁷ Because there are more white families that are more likely to own their home than Black families, younger generations will inherit more primary residences from while families than from Black families.²⁰⁸ The intergenerational wealth transfer from one generation of white Americans to the next will continue to exacerbate the racial wealth inequality,²⁰⁹ providing them with the flexibility to avoid incurring significant debt, more common amongst minorities.²¹⁰ This lack of wealth has kept many minorities from accessing real property.²¹¹

It is estimated that 36% of the population rent, rather than own, their homes.²¹² Almost half of these individuals spend at least 30% of their income on housing.²¹³ The racial and ethnic divide among renters is stark, as 58% of all Black or African American households, and 52% of all Latino households rent, rather than own.²¹⁴ In subsidized public housing, which represents approximately 2% of all households, Latino and Black residents are routinely placed in lower quality living spaces compared to their white counterparts, and yet are required to pay an upcharge (25%, 17%, respectively).²¹⁵ Among all renters, 62% live in an apartment building, 27% live in a single-family home, while the rest reside in mobile/manufactured homes or in multi-homed buildings.²¹⁶

Although the “home” represents the greatest protection under the Fourth Amendment, the protections are dependent on the type of structure of the home. For example, single-family homes and their curtilage²¹⁷ are afforded the greatest protections under the Fourth Amendment. The expectation of privacy of residents in apartment buildings and multi-homed buildings is either diminished or non-existent in some areas such as stairwells, lobby areas, and other spaces which are shared with other residents.²¹⁸ Mobile homes are also subjected to a distinct analysis where their occupant must show that their dwelling is used as a home and not a vehicle.²¹⁹ Residents who live in public assistance housing are subjected to a diminished expectation of privacy as residents may be forced choose to allow a welfare caseworker to conduct a home visit or lose tax payer funded benefit..²²⁰ And if a neighborhood has a large Black and Latino population, it more likely to be profiled as “high crime areas”,²²¹ a factor that increases the likelihood of a warrantless search or seizure conducted by the police being deemed valid.²²² As observed by a court, the concept of high crime area “can easily serve as a proxy for race or ethnicity.²²³ A renter’s expectation of privacy can also be diminished because they may be forced to waive any objection to a warrantless search through the terms of the lease.²²⁴

As stated earlier, minority groups have been disproportionately discriminated against in their capacity to access real property. Due to historical discrimination practices, traditional financial institutions would not provide credit to minorities, as these groups were considered too ‘risky’ to lend to.²²⁵ This exclusion created a market for non-traditional loan and credit institutions to meet the needs of these consumers, using predatory terms such as high risk, high cost lending products.²²⁶ Although the Fair Housing Act of 1968 outlawed overt discrimination practices,²²⁷ minority homeownership continues to be hindered by credit scoring systems that rely on faulty assumptions.²²⁸ For example, credit scores are used by lenders to determine a customer’s risk when applying for a loan. Algorithms used to calculate a customer’s credit scores rely on data provided by traditional financial institutions and non-traditional lenders. A variable that increases a customer’s credit score is on-time payments, which are routinely reported by traditional financial institutions; these payments are not reported by non-traditional lenders, thereby affecting these minority populations. Credit scores do not eliminate racial disparities.²²⁹ “AI,” as it is utilized in the banking sector, has presented itself as a “neutral” technology that eliminates bias in the processing of loan applications.²³⁰ Nevertheless, a recent study examining 17 varied factors of more than 2 million conventional home purchase mortgage applications from 2019 found that non-white persons were between 40% to 80% than similarly situated white applicants.²³¹ Navy Federal Credit Union, the largest credit union in the United States, is facing legal action for discriminatory loan practices, as more than 50% of all Black home mortgage applications were denied.²³²

Underwriting these algorithms’ continued dependence on discriminatory data ‘cement[s] the discrimination’²³³ at the decision stage.²³⁴ The lack of public access and scrutiny of these algorithms and their proprietary nature make the rationale for a loan application decision a mystery, even to the loan officers.²³⁵ AI is also being deployed to help companies select which homes to purchase²³⁶ and make home valuations.²³⁷ It is also utilized for property management assistance, such as rental application screenings and rent estimations, which is having a direct impact on the nationwide rent increases experienced in the past few years.²³⁸ In the aggregate, these tools are severely impacting the housing market, squeezing renters into paying higher-than-average prices.²³⁹ And like loan application algorithms, these tools have exhibited the same discriminatory practices against minorities.²⁴⁰

By 2021, 65.5% of Americans owned a home.²⁴¹ But the subsets of that 65.5% vary significantly by race: 73% of Whites, 68% of Asian Americans, 50% of Latinos, and just 44% of Blacks owned a home.²⁴² Black homeownership grew just 0.1% in a decade.²⁴³ In 2022, when new home buyers were asked to identify themselves, 88% identified themselves as White.²⁴⁴ The new home buyer percentage of minorities was significantly less: Latino (8%), Black (3%), and Asian (2%), and the remaining 3% identified as other.²⁴⁵ The disparities reflect the systemwide racial discrimination within the housing industry. Those who cannot afford any of the available housing options are forced to survive in shelters, tents, or cars. From 2021 – 2022, there was a 12% increase in the number of houseless persons in America, representing 650,000 people.²⁴⁶ Amongst the houseless, minority groups are disproportionately represented. For example, Blacks make up 12% of the general population but are more than 37% of all houseless persons.²⁴⁷ Indigenous people account for 1.3% of the population but account for 3.4% of all houseless.²⁴⁸ Native Hawaiians and Pacific Islanders represent just 0.3% of the general population but are overrepresented showing a six-fold disparity, accounting for 1.8% of all houseless persons.²⁴⁹ The Latino houseless disparity rate grew in the past couple of years, now placing Latinos at 24% of all houseless. Whites are significantly underrepresented, accounting for approximately 36% of the houseless, although making up 67% of the population.²⁵⁰

Although many states had criminalized houselessness,²⁵¹ in 2024, the Supreme Court validated their permanence by denying that these violated the Eight Amendment.²⁵² In doing so, a houseless person’s privacy rights are effectively eviscerated.

Housing law disproportionately benefits white homeowners. Restricting minority access to homeownership maintains the Founding-era, white supremacy, settler colonial principles towards property. Through the “watchful gaze” of the Fourth Amendment, it is this population, white homeowners, which becomes invisible to law enforcement and other government institutions. At the same time, because Fourth Amendment law affords protections on a sliding scale, those without ownership of a single-family home structure become hypervisible to law enforcement, who are more inclined to focus the crux of their resources on monitoring and prosecuting those with lesser protections.

B. Exposed

Community interactions are necessary to the cultural, economic, and educational development of a society. The right to movement has been recognized as a fundamental right.²⁵³ Nevertheless, Fourth Amendment law has been used to control who can participate in society without the threat of police action. As mentioned, the Fourth Amendment does not protect what is exposed to the public. If a police officer observes conduct or evidence from a legally authorized vantage point or from a location commonly available to the public, no Fourth Amendment violation will exist.

Depending on the observations made by a police officer, in conjunction with other factors present at the time, a police officer’s interaction with a person in public could result in an arrest. Out in public, law enforcement can approach an individual and begin a consensual encounter. If, during the interaction, a person gives consent, the police can search an individual and his property; this is true even if the person is never advised that they can deny consent or limit and revoke any consent provided.²⁵⁴ If a police agent can establish probable cause, based on his observations, that a criminal offense was committed in his presence, that officer is then authorized to detain and arrest the individual,²⁵⁵ regardless of the severity of the crime allegedly observed.²⁵⁶

On the heels of the passage of the Civil Rights Act, which is credited with dismantling the legal segregation practices of the Jim Crow era, the Supreme Court created a new category of instances that authorized the temporary detention of any person by the police if they have reasonable suspicion to believe that a crime may be occurring.²⁵⁷ The person’s detention cannot be longer than necessary to dispel or confirm the suspicion,²⁵⁸ and a pat-down search is authorized if the police officer believes that the individual may be dangerous.²⁵⁹ A police officer’s subjective intent or motivation for stopping a person is irrelevant under Fourth Amendment law.²⁶⁰ Even when profiling is used, the Court has condoned the practice by examining the validity of the police action through an objective analysis of: (1) the facts available to the police officer at the moment of the interaction, and (2) if those facts meet the burden required.²⁶¹ Once a person is arrested, the officer may search for evidence physically located on the person, along with any area within his control.²⁶²

As shown, Fourth Amendment law defines the contours of how the police interact with the community they serve. The results have been the continued and systematic policing of minority bodies, producing disproportionate results. Blacks and Latinos are stopped by the police,²⁶³ are denied bail, are convicted of a crime, and are punished more severely, than similarly situated whites.²⁶⁴ The women’s prison population grew 832% in almost 40 years..²⁶⁵ Members of the LGBTQ+ community are incarcerated at three times the rate of the rest of the population, are overrepresented in every stage of the criminal legal system, and are more likely to be placed in solitary confinement.²⁶⁶

Gay and lesbian women account for 24% – 33% of persons incarcerated in jail or prison, respectively.²⁶⁷ Transgender, nonbinary gender and Two- Spirit persons have also disproportionate interactions with the criminal legal system, where 47% of Black, 25% Latino, and 30% of Indigenous trans persons have reported being incarcerated at some point,²⁶⁸ while nearly half of all trans people reported not feeling safe when seeking help from the police.²⁶⁹ Disabled persons are also disproportionately overrepresented in the criminal legal system, with 66% of those incarcerated self-reporting a disability.²⁷⁰ Additionally, the number of incarcerated indigenous persons in local jails increased 85% from 2000 – 2019.²⁷¹

The special needs exception also contributed to the excessive police surveillance of minority bodies. For example, immigration politics at the border profiling of Latinos²⁷² along with the patently discriminatory surveillance and intrusions against Muslims fueled by War on Terror bigotry in a post 9/11 nation, ²⁷³ enable the government to perform searches and seizures based on a person’s ethnicity, even when these interactions occur more than fifty miles away from any border.²⁷⁴

Fourth Amendment law makes it easier for surveillance to flourish in public spaces and in those locations where a person has a diminished expectation of privacy, such as schools, prisons, and airports, to name a few. Without robust privacy protections, these spaces are the ideal loci for the development, testing and use of new surveillance technologies. The “public” category of Fourth Amendment law has made hypervisible those that do not fit the settler colonial’s definition of “normal” and thereby exposes them to higher frequency of surveillance.

Directly influenced by this reduced level of protection, private and public institutions have significantly invested in new surveillance technologies in the past few decades.²⁷⁵ For example, computer vision research is a field of AI that focuses on “measuring, mapping, recording, and monitoring the world from visual inputs such as image and video data.”²⁷⁶ Research in this field has been particularly attractive to these institutions because researchers do not need to secure consent from people, or from places these people interact with, because the Fourth Amendment does not recognize any privacy protection in public.²⁷⁷ In a 2023 report examining 40,000 computer vision papers and patent applications, researchers made various important observations. From the 1990s until the 2010s, the number of computer vision papers subsequently used in surveillance patent applications rose significantly (from 50% to 79%, respectively). The top-two producing computer vision research countries cited in surveillance patent applications were identified as the United States and China, while the top elite institutions authoring these papers were Microsoft, Carnegie Mellon University, Chinese Academy of Science, MIT, and Tsinghua University.²⁷⁸

The report identified that the object of these papers and patents focused on the extraction of four distinct human data points:²⁷⁹ (1) human body parts, such as eyes, faces, eye movement, and other visible characteristics of a person; (2) human body, the targeting of persons as they appear in everyday activities, such as walking, running, shopping, etc., for human activity recognition and security monitoring; (3) human spaces, such as homes, offices, streets, borders, etc., to identify objects within these spaces; (4) other socially salient human data, such as data containing the mental, economic, cultural, and location details of humans, to better target a user’s search results.²⁸⁰ The researchers concluded that 90% of the 40,000 papers extracted one of the four human data points previously described.²⁸¹ Two-thirds (66%) of the papers claimed that their technology extracted data from human bodies and human body parts data. A third (33%) of those expressly claimed that their technology’s strength was the targeting of human body part data.²⁸² A smaller but sizable portion (18% and 16%, respectively) claimed that they targeted human spaces. Only 1% of the papers examined claimed to be targeting exclusively non-human data.²⁸³

The sheer volume of research and patent applications that target the whole human body and human body parts data makes a person’s physical characteristics a valuable commodity, thereby stripping the humanity and dignity of those persons targeted by converting their personal characteristics into data points. Similarly, the interest in spaces occupied by persons in these papers transforms any location into a geography to be measured, compared, contrasted, stored, and predicted. The kitchen table no longer evokes any emotional, cultural, social, familiar, or even legal meaning. It is just an object to be examined.

The authors also highlight how these papers and patent applications obfuscate the language of surveillance AI.²⁸⁴ For example, persons are defined as objects, an abstraction that minimizes and obscures the potential use of technology for human surveillance.²⁸⁵ A similar tactic was observed by the authors when they noted that many papers described their targets as “objects”, when in fact, they targeted humans.²⁸⁶ In omitting that the target is a human, or by classifying a human as an “object” in the researcher’s subject/object language choice, computer researchers avoid any ethical obligations to the people targeted; their word choices facilitate the “denial of responsibility and critical inquiry”.²⁸⁷

The prevalence of the data transfer that these technologies enable was another important conclusion of the report.²⁸⁸ Because the purpose of surveillance technologies is to predict, and predictions rely heavily on the collection, aggregation, and transfer of data, these technologies’ transference is a key feature.²⁸⁹ None of the computer vision papers or the patent applications examined considered the data collected by technology to remain with the subject.²⁹⁰ On the contrary, in most instances, the collected data is intentionally shared with others, such as institutes, data brokers, or even law enforcement.²⁹¹

New surveillance technologies depend on Fourth Amendment law and its categorization of public and private spaces. As such, private institutions are using AI to surveil people and the places they interact with to extract human data information (human, human body data, and human spaces data) to develop tools for commercial applications.

Some of these tools are already in use. Although the data does not support the premise of a crime surge, retailers have taken steps to protect themselves from such a ‘threat’.²⁹² For example, many retailers implemented loss preventive measures, such as locking up everyday products behind protective equipment.²⁹³ With disproportionate effects, the selection of which products to place in lock cases has impacted Black women more than others. For example, Walgreens, CVS Health and Walmart for a long time locked up beauty and hair care products for black women and other women of color, causing a significant hardship on these consumers.²⁹⁴ Additional measures include direct communication between a retailer’s security guard and local police departments stationed near the retail stores,²⁹⁵ employing off-duty police officers,²⁹⁶ and deployment of additional police officers, such as California Highway Patrol, near retail locations.²⁹⁷ But retailers are also deploying new technologies as well.²⁹⁸ For example, some are using facial recognition software to detect repeat offenders.²⁹⁹ Face First, a company which claims to assist nearly 25% of all major retailers, compiles time-stamped incidents of suspected repeat offenders for law enforcement.³⁰⁰ These tools require that retail stores create internal databases of suspicious customers that can be then searched and “matched” for later comparisons.³⁰¹ Other retailers are using virtual security guards; body-worn cameras for loss prevention officers; and enhanced video surveillance equipment that is capable of detecting objects, such as weapons or stolen items.³⁰²

Like traditional surveillance practices, it is not surprising that the use of these new surveillance technologies disproportionately affected people of color.³⁰³ For example, the Federal Trade Commission placed a five-year ban on Rite Aid pharmacy chain stores from using its facial recognition software technology; this technology systematically misidentified Blacks, Latinos, and Asians as potential shoplifting suspects.³⁰⁴ In Michigan, the Detroit Police Department has wrongfully charged three Black persons for shoplifting because of facial recognition identifications.³⁰⁵

The “retail theft” scare has often allowed the secret deployment of multiple surveillance technologies onto unsuspecting customers, automatically classifying a large consumer segment – mainly people of color- as potential criminals. The deployment of these modern technologies into brick-and-mortar retail establishments has exposed a significant sector of the public, causing them to be hypervisible to these new technologies. As the technology is primarily used by private parties and out in public, a person’s Fourth Amendment rights against these technologies are limited. The Fourth Amendment protects people, not places, but the protections afforded are confined primarily to where the person is located. In deciding if a Fourth Amendment violation occurred, the courts will always examine if the person has a “legitimate expectation of privacy” at the site where the invasion of their privacy occurred.

Other examples of new surveillance technologies already in use have also proven to be discriminatory. For example, ShotSpotter, the AI enhancement technology that purports to discern sounds, uses audio recording equipment.³⁰⁶ Cities across the nation that use this equipment have chosen to place these recording devices primarily in common areas of Black and brown neighborhoods,³⁰⁷ locations with diminished or nonexistent privacy protection under the Fourth Amendment.³⁰⁸ The equipment can record, store, and analyze sounds its algorithms recognize as gunshots.³⁰⁹ But the equipment can also record routine conversations from the residents of these public housing communities without notice or consent. The monitoring of these communities with this technology is only available because the Fourth Amendment permits it.

Police across the nation are using AI software and hardware to integrate a town’s existing video feeds from government cameras, as well as those from private businesses and organizations, into a smart platform that enables the detection of objects and persons by using AI.³¹⁰ Gun detection technology and Internet of Things sensors can also be integrated into the platform.³¹¹ The goal of the corporation is to allow governments to integrate the video footage of “doorbell cameras, drones, robots, fixed surveillance cameras, helicopters, hidden cameras, police body cameras, and cameras in schools and churches.”³¹² Each one of these video cameras is authorized primarily on the premise that they target public spaces or places with a diminished expectation of privacy.

AI-powered surveillance towers are used by Customs and Border Protection to identify persons suspected of entering the United States illegally.³¹³ Airports use AI systems to streamline passenger operations which rely on computer vision technologies.³¹⁴ Jails and prisons are also monitoring people using surveillance technologies. For example, the use of speech recognition software is used to monitor communications between prisoners and those whom they talk to on the jail’s telephone systems.³¹⁵ After the conversations are recorded, the AI software transcribes and analyzes these recordings, providing prison officials with “key insights” into ongoing criminal activity.³¹⁶ Current speech recognition technology has been proven to discriminate against minorities, especially against Blacks, with error rates of 50%.³¹⁷ Federal prisons are also scanning mail sent to prisoners, creating new potential for integrating AI to surveil and monitor the written communication of those housed in these locations.³¹⁸ Communications by incarcerated persons with the outside world can be monitored, in accordance with Fourth Amendment law. Schools are also locations of experimentation. AI technology is used to collect data from a student’s social media profiles,³¹⁹ to monitor people and items entering school property,³²⁰ and to ensure academic integrity.³²¹

All these institutions benefit because of the diminished privacy protection that the Fourth Amendment provides. It exposes a large segment of society to the potential threat of algorithmic oppression, extraction, and dispossession. After these technologies are tested and perfected in these geographies, they are then deployed to the community at large, with little or no consequence.

Conclusion

Critical surveillance studies theories, like anticolonial theory, can be used to critique many of the assumptions on the virtues of the Fourth Amendment. This permits me to highlight the connections between surveillance within the settler colonial system and AI designed as new surveillance technologies. Through methodologies designed by critical scholars, we can highlight synergies between a system of surveillance that imposes a unique value structure and the legal framework that facilitates the implementation of this system and the Fourth Amendment as they are essential in the State’s ability to monitor, observe, discipline, control, and exclude those populations that are not deemed “normal.” This system is also a justification for the rapid development of multiple AI surveillance technologies that are already affecting marginalized communities. If elite institutions continue to dominate the development of these new technologies, fewer people will have the opportunity to impact the way these tools are developed and used, and fewer people will be able to hold these institutions accountable. The new surveillance technologies not only hypervisualize marginalized groups exponentially, but will spill over to other segments of society, causing major challenges.

By exploring the Fourth Amendment as a surveillance tool, I argue its originalist approach reproduces the Founding-era settler colonial values that required the monitoring, controlling, disciplining, and disappearance of certain populations. By categorizing, Fourth Amendment law announces the interests it will protect, such as property interests and what is not exposed to the public. Each category – in turn- plays a role that limits civic participation. New surveillance technologies are not only used by the State to monitor, observe, and control people, these technologies depend on the Fourth Amendment law categorization approach to flourish.

This symbiotic relationship between surveillance technologies and the Fourth Amendment cannot be detangled by reform measures. Any proposal to regulate law and technology must understand that the Fourth Amendment is a tool of settler colonial system. These recommendations, therefore, must disassociate the Fourth Amendment from the Founding era principles of extraction, dispossession, and exclusion, and reconstitute the Amendment to a system that recognizes the inviolable worth of each member of society, with dignity and justice for all.