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Tiny Constables and the Cost of Surveillance (Bankston/Soltani)

In Archive, FBI, NSA, Surveillance, Technology on January 11, 2014 at 12:12 AM



Ashkan Soltani (@ashk4n):

The Yale Law Journal Online (YLJO) just published an article that I co-authored with Kevin Bankston (first workshopped at the Privacy Law Scholars Conference last year) entitled “Tiny Constables and the Cost of Surveillance: Making Cents Out of United States v. Jones.” In it, we discuss the drastic reduction in the cost of tracking an individual’s location and show how technology has greatly reduced the barriers to performing surveillance. We estimate the hourly cost of location tracking techniques used in landmark Supreme Court cases JonesKaro, and Knotts and use the opinions issued in those cases to propose an objective metric: if the cost of the surveillance using the new technique is an order of magnitude (ten times) less than the cost of the surveillance without using the new technique, then the new technique violates a reasonable expectation of privacy. For example, the graph below shows that tracking a suspect using a GPS device is 28 times cheaper than assigning officers to follow him.


The paper was inspired by an exchange between Catherine Crump and Representative Gowdy at a congressional hearing two years ago on the ”Geolocational Privacy and Surveillance Act.” The congressman asked how tracking technology, specifically GPS tracking, is any different from following someone around on the street and whether it merits additional legal protections. We relied on Harry Surden‘s eloquent argument that privacy protections are often made possible due to structural transaction costs and Orin Kerr who argues that the Supreme Court should use an equilibrium-adjustment theory to maintain a steady level of protection in the face of new technologies.

If technical and financial barriers previously provided some protection from large-scale surveillance by the government, these implicit protections have been essentially eliminated by the low costs of new surveillance technology. Once the cost approaches zero, we will be left with only outdated laws as the limiting function.

Related Links:

Bruce Schneier: “We Have Made Surveillance Too Cheap. We Have to Make Surveillance Expensive Again”

AT&T/Verizon/T-Mobile/Sprint/Cricket/US Cellular/C Spire Responses to Sen. Markey Re: Law Enforcement Requests

Surveillance Costs: NSA’s Impact on the Economy, Information Security, and Internet Freedom

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