Tech: What Self-surveillance Means For You And Our Society

0:00It's June and another big week in the run up to the midterms. Primaries in half a dozen states, including California, where new congressional maps are in place and a chaotic race for governor is wide open. We're also following gas prices and Iran. So far, talk of a peace deal is just talk. We'll keep you posted. Listen every morning up first on the NPR app or wherever you get your podcasts.

0:31Imagine you and your partner go out for a drink on a Friday night. You wind up having a big argument, and so you go home early and you go to bed alone. The next morning, you wake up to the news that they were murdered overnight, their body left in a nearby field, and you're the authority's prime suspect. In previous eras, you might have struggled to prove your innocence, but in the information age, help arrives from a high-tech witness. Prosecutors say downloaded data showed Doug barely moved in the hours they believed Nicole was killed and left in the field.

1:08Andrew Guthrie Ferguson:Is that based on the data that you obtained directly from Fitbit? Yes, it is. Everything that I could view directly on the device and lined up with what had previously been stated. In 2016, police cleared Doug Dietry during the investigation into the murder of his late girlfriend Nicole Vanderheiden. That's because data recorded by his Fitbit proved that at the time investigators believed she was killed, he was asleep. D-Tree's wearable tech didn't just keep track of his health, it saved his life in a different way. Technology is changing our lives, and how it's changing how our lives are policed is no exception.

1:46Previously, unsolvable crimes can be unraveled thanks to data science, facial recognition software, social media monitoring, and more. I'm Jen White. You're listening to the 1A Podcast. Today, what does this level of data collection and surveillance mean for our personal freedoms and our democracy? We'll answer that question and more right after this short break. Stay with us.

2:11This message comes from MidiHealth. Co-founders Dr. Kathleen Jordan and CEO Joanna Strober discuss why they started a virtual care platform for women in paramenopause and menopause. The symptoms and experiences that women have in midlife, I think, were underappreciated or possibly even trivialized. The changes of perimenopause and menopause create a broad spectrum of symptoms and can actually lead to long-term health issues, but too few clinicians are trained in it. I also want to add, often the type of care that women are needing is very iterative. It requires trying different medications, learning about their body, and learning how to take care of themselves.

2:51And so what we've tried to do at MidiHealth is create a new type of care system that is responsive to women's needs and helps them take care of themselves and stay healthy instead of just treating disease. MidiHealth, committed to helping women in midlife with paramenopause and menopause care, accessible via telehealth visits at joinmidi.com. This week on NPR's Newsmakers, Maine Senate candidate Graham Plattner, a working class Democrat leaning into one message, that the political system is rigged to favor the wealthy. There's only one direction. We need to be pointing fingers, and that is up.

3:28It's not left and right. Can that message help Democrats take the Senate in this year's midterms? Graham Plattner, this week on NPR's Newsmakers. Watch or listen wherever you get podcasts. Welcome back to the 1A podcast. Let's get into the conversation and meet our guest. Joining us in studio is Andrew Guthrie Ferguson. He's a professor at the George Washington School of Law here in D.C. and the author of the recent book, Your Data Will Be Used Against You, Policing in the Age of Self-Surveillance. Andrew, welcome back to 1A. Thank you for having me back. So, Andrew, let's just say I'm the average local law enforcement officer or official in 2026.

4:05How much information about members of my community do or could I have access to? A lot. So the reality is almost all the data that we create is available to law enforcement with a warrant, sometimes without a warrant. But at least if you have a criminal case going forward, you're a law enforcement agent and you have probable cause for crime, almost everything we create in a digital age is available to law enforcement with a warrant. If we have it, if they have it, the companies have it, or you have it on your devices, it's very little that will stop police from obtaining it. Your book includes a lot of examples of police using this data to solve what could be unsolvable crimes, terrible crimes, murders, sexual assault, arson.

4:47Why wouldn't we want police to have access to as much information as possible when it comes to solving crimes? Well, that's what the book is about. It's about showing that tension. On one hand, there are wonderful use cases where data will reveal suspects and people who did really horrible things in ways that we would want to prosecute. On the other hand, the rules that allow that information to go to police also allow police to get access about all sorts of information about all of us. And we haven't developed, like, legal rules to respond to that challenge. And the book is actually meant to sort of, like, elevate that tension to say, okay, we can see very good use cases for this kind of technology, this kind of data reveal.

5:31At the same time, it exposes what we do in our homes, in our lives, information about our bodies. Our intimate choices are also available. And in a world where we've seen sort of politicized prosecutions, ways of criminalizing association, personal choices around abortion or gender-affirming care, like what is quote-unquote criminal can change. And so the access to law enforcement for some of that really personal information raises some really difficult questions, which is what the book is supposed to address. You begin your book by talking about how you start a class that you teach in law school.

6:06You ask how many of your students have used a paper map in the last year. And then you ask how many have handwritten or printed directions they found on the Internet. And then how many of them use their phones or digital maps while they're in their cars. How do they respond to those questions and what do those answers tell you? Well, first, they're kind of confused about the idea of a map. I mean, they know their grandparents have it, but they haven't really seen it. And those of us who grew up in a world where we had atlases in the back of our trunk or we had those triptychs where you could actually go print out a direction-by-direction map, we're quite familiar with it.

6:40But obviously, these students who are coming into a seminar class on police surveillance technologies are quite used to a world where literally every direction, every question they have about where to go is on their phone or built into their cars. And what the question is meant to get them to recognize is that, don't you also realize that police can get access to this data with a warrant and sometimes without a warrant? And they all kind of nod. They sort of say, yes, I think I know that. And I ask them, well, will you change? And they say, no, we're stuck. And that's what the book is trying to crystallize, this idea that we are all caught in this world of digital self-surveillance.

7:16We've built these networks of digital exposure all around us, And we haven't built corresponding protections, legal, constitutional, otherwise, to sort of balance out that sort of digital reveal. And it's meant to put them in the trap. And most of the class is actually putting them back in the trap as we walk through how they, too, have bought into this consumerized self-surveillance. They, too, agree that maybe there are times where they want to have cameras everywhere. And yet the reveal also reveals everything about them, and that's what they struggle with. When do you think we shifted into what feels like a very different view and understanding of privacy than what was originally considered by the founding fathers?

8:00Well, that's what's so fascinating, right? So for generations, decades, centuries, we've lived our lives not being able to reveal every single data point about us. We didn't have, like, speakers in our bedrooms or our living rooms, right? We didn't have cameras on our front door monitoring who's going in with us and when we leave. We just lived without that. Now, because of sort of the consumer push for self-surveillance, we sell surveillance as a service. You literally have paying money to be surveilling yourselves. Every smart device you buy is a surveillance device. I've got to pause there because when I think about things like ring cameras, we don't think about that as self-surveillance.

8:35We think about that as safety. It's about surveilling the rest of the world, not about us. But that's the trap. That's what the book is about, is that we have bought into this idea of purchasing self-surveillance. Every smart device you have bought is a surveillance device. That's literally what you're paying for. You just don't think about it that way because they've been very clever about how they have marketed it. And that's not against necessarily the companies. But the danger here is not that you purchase that Ring doorbell camera or you purchase the Amazon Echo in your home. It is how we have also allowed law enforcement and the government to get access to that data.

9:10We've built these sort of networks for convenience, just like the GPS in our cars. Like most of us cannot go through our lives without that GPS. But the rules around that data reveal have not sort of matched the exposure that we're in. And that's what the tension in the book is. Like it's not saying – it's not meant to shame people who have a ring doorbell camera or who have decided to buy into self-surveillance. It's to recognize that we have sort of trapped ourselves in this world and we now need to respond to the digital reveal that we have opened ourselves up to. I'm going to talk about the Fourth Amendment in a moment, but first I just want to understand whether you feel like the technology we're talking about, do you think the technology is neutral or not?

9:52So technology is never neutral, right, in some ways. It's baked in with all of the biases of the people who create it and why it's being sold. It could be used for good or bad. That's part of the issues. And I'm not trying to judge people who buy into the consumer surveillance because I understand the real reasons why you might want to purchase surveillance as a service. But what I want people to realize is you have purchased surveillance as a service. This thing that you are paying money for is actually surveilling you far more than it's surveilling your neighbors or everyone else, although there are costs there.

10:22And so that sort of – that tension there is what the book is trying to sort of surface and elevate. And I think that we need to confront this change of our world, of how it has shifted. Like literally everything in your home, on your body, as you purchase, it's sort of like digitally mediated. Like we don't communicate anymore without some kind of digital third-party mediation. And that means that you have exposed that data to some other entity besides the person you're trying to communicate with. From your perspective, when we talk about the self-surveillance and how it's been sold to us, was using that surveillance for policing an inevitable conclusion?

11:02Was that sort of built into the model up front or is it just how things have evolved? It's both. Like some companies, like Ring Doorbell is actually a really interesting example where they began partnering with police. It was actually they went to the police departments. They offered rebates in order to, like, buy the Ring doorbell. It was all connected to police until there was, like, citizen pushback about the concern that now police had access to all these cameras. And we were literally building a self-surveillance network in our neighborhoods. And people said, whoa, whoa, whoa, that's too bad.

11:32We don't like that. For other kinds of consumer technologies, I think it really was consumer-focused. Like, there's a reason why you want to have information like a Fitbit would give you, right, this idea that you can measure your steps and be healthier and all those good things. And I don't think it was originally created as a surveillance for police device. It was a surveillance for yourself device. But the problem is that we don't have rules that differentiate that. If you create the data, they will come for it or they can come for it and they will get access to it. Well, your book deals heavily with questions about the Fourth Amendment, which protects against unreasonable search and seizure by the government.

12:08Give us a brief history of this piece of the Constitution. Why was this a concern for the Founding Fathers? So the founding fathers were very much concerned with government power that could rummage through your homes or your papers or your lives in a way that felt arbitrary. And so the fourth moment was this response to say that there need to be probable cause and protections against your persons, your homes, your effects, your things, and your papers. And the idea was that with unlimited power, the then British government could use its tyrannical powers to sort of go through and figure out what you were doing.

12:48And at the time, the founding fathers were actually committing crimes like sedition, like tax evasion, everything else. And so they very much wanted a barrier about government access to this data. And in many ways, they had a natural barrier. Like we just didn't – this was pre-electricity. We didn't recreate it. And so it wasn't available. There wasn't a ring doorbell camera in, you know, James Madison's home. But what has happened, of course, is as we have built our own digital worlds up and we've revealed ourselves, our laws haven't sort of caught up. And our Fourth Amendment law really hasn't caught up.

13:18When I teach the Fourth Amendment, I teach criminal procedure, I begin talking about the seminal cases about the Fourth Amendment that involve a payphone, a little – put a quarter in a payphone and make a phone call. And the case United States versus Katz is about Charlie Katz who is making gambling bets across state lines. And the FBI had to go to this standalone payphone and put a reel-to-reel tape recorder on top to tape his conversations. And I have to explain to my students, A, what is a payphone? B, what is a reel-to-reel tape? And C, why would we be doing this? Why would we need protections?

13:52But the case creates this language of a reasonable expectation of privacy, which to this day, to this very moment, is a controlling standard of the Fourth Amendment. If something does not violate a quote-unquote reasonable expectation of privacy, police do not need a warrant to obtain it. And so that means lots of our digital trails, lots of our digital clues that are out there are unprotected by the Fourth Amendment. And even those things that are protected and that you require a warrant for, it's trivially easy really to get a warrant. And that's part of what the book is trying to expose. Even the thing we think is protective called a warrant is really not all that protective.

14:29Justin emails, I've worked hard to find a smartwatch that doesn't require connecting to the internet or sending my data out of my house. I also avoid downloading apps whenever I can get a similar functionality through a website. And Mark emails, I wanted to ask about the Fifth Amendment. If I own a piece of technology and that technology records something about me, shouldn't I be able to plead the Fifth and not incriminate myself based on my own data? You would think so, but you would be wrong. Essentially, unless the device you're talking about was sort of forced on you by the police or the government, there would not be a self-incrimination claim because you have done it yourself.

15:06And what the Supreme Court has said is it has to be compelled self-incrimination and self-incrimination there is being done by the government or the government agents. And so you creating the data and creating it out there, I agree, should, does feel kind of incriminating if your own papers are being used against you. But the current law would not allow a compelling Fifth Amendment claim on those grounds. We all have those terms and services agreements. We stumble across when we sign up for a new app or we have a new device and we click that box. What are we agreeing to? What are we signing over when we check that box?

15:45Because a lot of this data is held by third parties. In almost every single terms and service, there's a clause that says, if we, the company, are asked by the government with lawful process to turn over this information, we will. And that could be, depending on the content or non-content, the sort of private nature of it, could be a subpoena. It could be a warrant. It could be a grand jury subpoena. But generally speaking, in almost every single case, there is a carve-out that says if law enforcement has the power to get it, they can get it. And that is just the rules, right? Again, if the law enforcement agents in your jurisdiction have a power, have the judge's signature to get the data, it's available and you're exposed.

16:35Well, in the case we cited earlier of Nicole Vander Heiden's murder, data cleared Doug Dietry, but it doomed George Birch, who was also with Vander Heiden on the evening of her death. The Wisconsin Supreme Court says police did not violate George Birch's rights as they investigated him for the murder of a Ledgeview woman. The ruling means that Birch will not be getting a new trial. He's serving a life sentence for the 2016 murder of Nicole Vander Heiden. During his trial, prosecutors used data found on his cell phone. It placed him at the bar where Vander Heiden was last seen, outside of her home where she was killed, and the field in Bellevue where her body was found.

17:17In his appeal, Birch argued that his Fourth Amendment rights had been violated when the trial judge allowed that cell phone data to be used. So, Andrew, when we think about the massive amounts of data that are stored or generated by our devices, is any of that protected by the Fourth Amendment? So, even if it was protected, the warrant would allow the government to get access to it. So, you can say it is both protected by the Fourth Amendment but also available to law enforcement with a signed warrant. So generally speaking, the fourth man will not forbid law enforcement from getting access to anything.

17:57In some ways, you might want to think about the warrant as actually the key that allows police to get access to it as opposed to the protection. But at the same time, there's a lot of data that might not even require a warrant. And so in that case, which I love that case because it shows the tensions of how data can be used to be an exculpatory information and inculpatory at the same time, That situation, the gentleman who was eventually convicted had given his cell phone data to the police on an earlier unrelated case. We have to take a quick break. But when we come back, we talk about judges, legislators, and what you can do to make sure that surveillance doesn't get in the way of personal freedom and democracy.

18:35We're hearing from lots of you. A member of the 1A text club writes, we're off to a great start for a police surveillance date. I guess some people decided China had a lot to admire. And another of you shares, nothing will be done. We're just going to keep buying technology and commenting on social media. The American consumer is not going to stop doing all of this. It's like smoking a cigarette. We'll be right back.

19:00Andrew Guthrie Ferguson:Support for NPR and the following message come from Rippling. These days, you can chat with AI about almost any business problem, but Rippling AI is designed to actually solve them. That's because Rippling AI is built on your live global workforce data, so it doesn't just uncover insights into your business. It uses them to take complex actions across your departments. Ready for AI that isn't all talk? Head to rippling.ai slash NPR and get AI that turns insight into action. That's R-I-P-P-L-I-N-G dot A-I slash NPR. Sign up today. The surreal horror film Back Rooms is a smash. The director is a 20-year-old YouTuber and it's based on his popular web series.

19:47Andrew Guthrie Ferguson:Why is this online phenomenon taking off at the box office? We get into it on NPR's Pop Culture Happy Hour. Listen via the NPR app or wherever you get your podcasts. Welcome back. We're talking about how our data is being used against us and what self-surveillance means for personal freedoms and democracy. So, Andrew, it sounds like there are a lot of questions, concerns surrounding our personal data and the Fourth Amendment. Why have these questions not been addressed yet? Why is the technology moving so much quicker than we're responding legally or legislatively? So I think courts are definitely a slower response.

20:26Right now, if a case gets to the Supreme Court, it takes years and years, decades almost, to address it. Legislators could act. They could easily act. They just haven't really acted because the problem is difficult. You'd have to draw lines about which kind of data you want to reveal to police and which you don't. You might have to cabin the power of police, which is very hard for elected leaders to do. And there hasn't been really a push to vote for legislators that are 100 % pro-privacy. You don't see that in the advertising campaigns of congressional or senatorial people, with the exception of Ron Wyden.

21:05Senator Ron Wyden has been on the leadership of this. But otherwise, people don't campaign on privacy. And so legislators have not responded to this gap between the digital reveal and the lack of protection. Well, you also said it's really easy for law enforcement to get a warrant. Why is it such an easy ask? So the first thing is that the standard is probable cause. Now, probable cause is in the Constitution, so that's the standard, but it's pretty low. So 51 % is a preponderance of evidence, and probable cause is decidedly lower than that. That means that police can go there with information that could be wrong.

21:41It just could not be that persuasive. And that opens the door to all of your digital information if they have probable cause of a crime. Sometimes in some states, the judge who signs off on it doesn't even have to be a lawyer. There's a case that's being argued before the Supreme Court right now, United States v. Chattray. It's a big case involving geofence and whether your geofence data, the data that lived with Google and what they called the sensor vault, is all of 500 million data points of all of us and our travels and that. And the guy, the judge who signed off on that was a person who was three years out of college, had never been to law school, had just finished his judicial training, and here he is signing the warrant that opens the door that eventually ends up before the Supreme Court.

22:24And no disrespect to him, but this is the entry point. It allows police to get access as opposed to really protecting all of our protections, in part because the standard is pretty low. Well, if a law enforcement agency request for any particular kind of data is denied, how easy is it for them to access in another way? For instance, can they just buy it? They can buy it. The FBI director just a few months ago said before Congress and said that the FBI is buying tracking data, location data, just like any other company could. And that's a huge, like, workaround loophole from the Fourth Amendment.

23:01It might be the case that the FBI might need a warrant to get that information otherwise. But the way our law currently works is that anyone can buy the data broker data, the data that's sort of been laundered through a bunch of different private companies. and the government, if they had the money and they wanted to pay for it, they too can buy the same location data without a warrant. Well, we heard from Michael who emails, I am less worried about Big Brother being able to survey my activity online or from my devices that I am about someone hacking those devices to alter those records to frame me.

23:33Now that DNA can be synthesized in a laboratory, it is not beyond the realm of possibility that DNA matching mine or that of a supposed victim could be placed on a weapon, crime scene, or my car or home. in order to match a scenario convenient to someone in power. So in some cases, it's our bodies, our DNA that's been used in courtrooms to prove or disprove guilt. But thanks to advances in data storage and collection, this kind of biometric information can be cataloged and stored at scale. So how are police getting our data in 2026? And what does it mean for citizens when police don't just know what kind of food you like to order on a Friday night or where you traveled, but actually have access to the building blocks of our bodies on digital file.

24:18So the rules around DNA, again, are you, right now, you and I are shedding our DNA from where we're sitting. And if police wanted to come by and like sweep up that DNA, there would be no claim to the DNA we left behind. And if you think about what you do every day, you're shedding DNA every single day at every moment you want, every, you know, straw you throw out, every, you know, bottle you drink out of has DNA. So police are doing that if they suspect you are involved in a crime. But because we have these big DNA databases, you can now match the DNA found there to these DNA databases and be able to identify who the people are and whether, hopefully, if they're doing it for the good reasons, connecting it to some crime they're trying to solve.