Surveillance Technologies and Constitutional Law

Abstract

This review focuses on government use of technology to observe, collect, or record potential criminal activity in real-time, as contrasted with “transaction surveillance” that involves government efforts to access already-existing records and exploit Big Data, topics that have been the focus of previous reviews (Brayne 2018, Ridgeway 2018). Even so limited, surveillance technologies come in many guises, including closed-circuit television, automated license plate and facial readers, aerial cameras, and GPS tracking. Also classifiable as surveillance technology are devices such as thermal and electromagnetic imagers that can “see” through walls and clothing. Finally, surveillance includes wiretapping and other forms of communication interception. The following discussion briefly examines the limited evidence we have about the prevalence and effectiveness of these technologies and then describes the law governing surveillance, focusing principally on constitutional doctrine, and how it might—and might not—limit use of these technologies in the future.