Regulating the Digital Investigative State

This week, University of Illinois College of Law Assistant Professor Law Stephen Rushin discussed his article The Legislative Response to Mass Police Surveillance scheduled for publication in volume 79 of the Brooklyn Law Review. The abstract for the article reads:

Police departments have rapidly adopted mass surveillance technologies in an effort to fight crime and improve efficiency. I have previously described this phenomenon as the growth of the digitally efficient investigative state. This new technological order transforms traditional law enforcement by improving the efficiency of everyday policing activities and retaining copious amounts of data on both suspicious and unsuspicious behavior. Empirical evidence shows that police surveillance technologies are common and rapidly expanding in urban America. In the absence of legislative action, police departments have adopted widely disparate internal policies. The Supreme Court had the opportunity to reign in the scope of police surveillance in Jones v. United States. But the Court could not agree on whether technological improvements in efficiency transform an otherwise legal policing tactic into an unconstitutional search. Nor could the Court agree on whether a person may have a reasonable expectation to privacy in public movement. Post-Jones, the jurisprudence of police surveillance emerged as incoherent as ever.

I have previously argued that the judiciary should regulate police surveillance technologies. While it remains possible that the judiciary will someday make such a doctrinal shift, the immediate responsibility for regulating police surveillance technology falls on state legislatures. In this Article, I offer a model statute to regulate mass police surveillance. The model statute limits indiscriminate data collection. It also caps data retention for personally identifiable information. It excludes from criminal court any locational evidence obtained in violation of the statute. And it gives the state attorney general authority to bring suit against police departments that fail to abide by the law. This legislation would give discretion to police departments to craft data policies fitting their city’s unique needs, while also encouraging consistency and fairness.

The 20 minute interview, available here, aired on Law and Disorder Radio, a weekly radio program, addresses law enforcement use of different technological replacements for traditional behavior. At first, these innovations seemed a good thing but recently local law enforcement began to utilize extreme data retention using Automatic License Plate Readers and security cameras with facial recognition. These tools allow law enforcement to monitor an entire community invasively without invading any legally protected areas of privacy. As a result, the public is just beginning to learn the dangers of big data collection by the state. His proposal deals with the length of time local law enforcement retain data.


Tracking and surveillance technology facilitates unprecedented levels of data collection about individuals, often without their knowledge or consent. Government use of that technology has generated controversy and questions about civil liberties and privacy rights, How, or if, government can use these technologies responsibly is a major issue. For more on the subject, see the BLS Library copy of Privacy and Surveillance With New Technologies by Peter P. Swire and Kenesa Ahmad (Call # KF5399 .P75 2012). It offers an overview of government surveillance using new technology and selects five issues (Video surveillance, Border searches of electronic devices, Communication surveillance, Location surveillance, and online tracking) that present complex challenges to civil liberty advocates and government officials alike.