SURVEILLANCE OF BLACK LIVES AS INJURY-IN-FACT

Black communities have been surveilled by governmental institutions and law enforcement agencies throughout the history of the United States. Most recently, law enforcement has turned to monitoring social media, devoting an increasing number of resources and time to surveilling various social media platforms. Yet this rapid increase in law enforcement monitoring of social media has not been accompanied by a corresponding development in legal protections. Many legal challenges to government surveillance programs are thwarted before courts reach the merits because of a necessary threshold requirement: standing.

This Note proposes a framework geared toward meeting and overcoming the threshold requirement for standing in government surveillance cases. It argues that by couching social media surveillance of Black communities in the historical context of other forms of government surveillance, litigants may be able to demonstrate the “injury-in-fact” requirement of Article III standing. Case law in the wake of two surveillance-related Supreme Court cases, Laird v. Tatum and Clapper v. Amnesty International, suggests that demonstration of a substantial likelihood of harm from a government surveillance program may amount to injury-in-fact. This Note focuses on a particular form of surveillance—social media surveillance—and illustrates how law enforcement’s effectively unregulated and uninhibited capacity to surveil social media inflicts harm on Black communities amounting to a legally cognizable level. It contemplates a future without surveillance, with an eye toward abolishing the surveillance and punishment regime.

* J.D. Candidate 2022, Columbia Law School. I’d like to thank Professor Jeffrey Fagan for his thoughtful suggestions and feedback on previous drafts and Professor Alexis Hoag for her guidance and wisdom, which informed this piece. I’d also like to thank the staff of the Columbia Law Review for their helpful edits, particularly Brianna Moreno for her support. This Note is dedicated to Charles B. Strong, an amazing husband, father, and grandfather whose heart made the world a better place. All views expressed are my own.

Introduction

“The police state isn’t coming—it’s here, glaring and threatening.”

— George L. Jackson 1 Blood in My Eye 176 (1990).

In June 2016, a Facebook profile under the name “Bob Smith” messaged several accounts belonging to political activists in the Memphis area. 2 George Joseph, Meet ‘Bob Smith,’ The Fake Facebook Profile Memphis Police Allegedly Used to Spy On Black Activists, Appeal (Aug. 2, 2018), https://theappeal.org/‌memphis-police-surveillance-black-lives-matter-facebook-profile-exclusive/‌#.W2MTod8Zqjo.twitter [https://perma.cc/‌ZP9M-3WSS]; see also ACLU of Tenn., Inc. v. City of Memphis, No. 2:17-cv-02120-JPM-jay, 2020 WL 5630418, at *2 (W.D. Tenn. Sept. 21, 2020); Brentin Mock, Memphis Police Spying On Activists Is Worse Than We Thought, Bloomberg CityLab (July 27, 2018), https://www.bloomberg.com/news/articles/‌2018-07-27/memphis-police-spying-on-black-lives-matter-runs-deep [https://perma.cc/‌SY56-JZ82]. Posing as a person of color, Bob Smith “liked” pages related to social justice—such as Black Lives Matter and Mid-South Peace and Justice—and “friended” several Black leaders and professionals in the Memphis area. 3 Antonia Noori Farzan, Memphis Police Used Fake Facebook Account to Monitor Black Lives Matter, Trial Reveals, Wash. Post (Aug. 23, 2018), https://‌www.washingtonpost.com/‌news/morning-mix/wp/2018/08/23/memphis-police-used-fake-facebook-account-to-monitor-black-lives-matter-trial-reveals (on file with the Columbia Law Review). In actuality, “Bob Smith” was an account created and managed by Sergeant Timothy Reynolds, a white detective in the Memphis Police Department’s Office of Homeland Security. 4 Id. The account was but one component of a large surveillance network that flagged and collected information on Black activists and their associates. 5 See Mock, supra note 2. The Memphis Police Department shared the intelligence it collected with federal, city, and private-sector entities, including the U.S. DOJ; the Memphis Light, Gas and Water Division; and FedEx. 6 Id. Undercover and plainclothes police officers used the information to monitor innocuous events hosted by Black Memphians, including a Black-owned food truck festival and a memorial service for Darrius Stewart, a Black teenager killed by Memphis Police in 2015. 7 See Plaintiff’s Undisputed Statement of Material Facts at 4, 7, 8, ACLU of Tenn., No. 2:17-cv-02120-jpm-DKV (W.D. Tenn. filed July 24, 2018), ECF No. 107-2; Wendi C. Thomas, The Police Have Been Spying On Black Reporters and Activists for Years. I Know Because I’m One of Them., ProPublica (June 9, 2020), https://www.propublica.org/article/‌the-police-have-been-spying-on-black-reporters-and-activists-for-years-i-know-because-im-one-of-them (on file with the Columbia Law Review).

Memphis is just one example of an experience far too common in Black communities. Indeed, for Black Americans, mass surveillance predates globalization and digitization by centuries, reaching back to the transatlantic slave trade. 8 See Simone Browne, Dark Matters: On the Surveillance of Blackness 6–9 (2015) (arguing that Blackness is a key site [location in the sociopolitical landscape] through which surveillance is practiced and is informed by the history of surveillance of Black life during slavery); Andrea Dennis, Mass Surveillance and Black Legal History, Am. Const. Soc’y (Feb. 18, 2020), https://www.acslaw.org/expertforum/‌mass-surveillance-and-black-legal-history [https://perma.cc/‌JC4X-B85D] (“Government monitoring . . . of Black speech and conduct has been an essential feature of American society far before the public at large realized the potential dangers of widespread surveillance.”). Surveillance, particularly surveillance conducted by law enforcement, has important consequences, namely overcriminalization and suppressed political mobilization. 9 See infra notes 132–169 and accompanying text. These consequences illustrate how mass surveillance reifies Western racial hierarchies and acts as a tool in maintaining social control. 10 See Browne, supra note 8, at 8 (arguing that surveillance reifies “boundaries along racial lines, thereby reifying race”); Stephanie E. Smallwood, African Guardians, European Slave Ships, and the Changing Dynamics of Power in the Early Modern Atlantic, 64 Wm. & Mary Q. 679, 700 (2007) (describing how surveillance practices on slave ships were a matter of social control); Michelle Alexander, Opinion, The Newest Jim Crow, N.Y. Times (Nov. 8, 2018), https://www.nytimes.com/‌2018/11/08/opinion/sunday/criminal-justice-reforms-race-technology.html (on file with the Columbia Law Review) (noting that new systems of electronic surveillance “contain the seeds of the next generation of racial and social control”).

A groundswell of activists and community leaders are leading a movement to shift resources away from police and prisons, 11 See Mariame Kaba, Opinion, Yes, We Mean Literally Abolish the Police, N.Y. Times (June 12, 2020), https://www.nytimes.com/2020/06/12/opinion/sunday/‌floyd-abolish-defund-police.html (on file with the Columbia Law Review); Rachel Kushner, Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind, N.Y. Times Mag. (Apr. 17, 2019), https://www.nytimes.com/2019/04/17/magazine/prison-abolition-ruth-wilson-gilmore.html (on file with the Columbia Law Review); The Time Has Come to Defund the Police, M4BL, https://m4bl.org/‌defund-the-police [https://perma.cc/‌WM6A-3M6X] (last visited Jan. 14, 2021) (outlining the goals of the Movement for Black Lives, including defunding the police). while legal scholars are beginning to imagine a radically different future for public safety and rehabilitation. 12 See Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 429–34 (2018); Brandon Hasbrouck, Abolishing Racist Policing With the Thirteenth Amendment, 67 UCLA L. Rev. 1108, 1125–29 (2020); Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156, 1224–31 (2015). Within the discourse on abolition, however, some have suggested replacing the role of prisons and police with a larger and more complex surveillance apparatus. 13 See, e.g., Mirko Bagaric, Dan Hunter & Jennifer Svilar, Prison Abolition: From Naïve Idealism to Technological Pragmatism, 111 J. Crim. L. & Criminology 351, 355 (2021) (“We advance a viable alternative to prison that involves the use and adaptation of existing monitoring and censoring technology . . . .”); I. Bennett Capers, Race, Policing, and Technology, 95 N.C. L. Rev. 1241, 1244 (2017) [hereinafter Capers, Race, Policing, and Tech] (discussing “technology and how harnessing technology can help deracialize policing”). Yet surveillance technology—in the hands of law enforcement or otherwise—may create and exacerbate the same problems generated by traditional surveillance and policing methods. 14 See Alexander, supra note 10 (“Even if you’re lucky enough to be set ‘free’ from a brick-and-mortar jail . . . an expensive monitoring device likely will be shackled to your ankle . . . . You’re effectively sentenced to an open-air digital prison . . . .”); see also Kevin E. Jason, Dismantling the Pillars of White Supremacy: Obstacles in Eliminating Disparities and Achieving Racial Justice, 23 CUNY L. Rev. 139, 171 n.150 (2020) (discussing how police employ surveillance equipment to stop predominantly Black and Latinx community members and noting that future technologies based on predictive algorithms may replicate similar results).

Surveillance of Black Americans is not simply a byproduct of the carceral state but a tool designed to facilitate the subjugation of Black people. 15 Paul Butler, Chokehold: Policing Black Men 61 (2017) (“African American men are arrested mainly so that they can be officially placed under government surveillance.”); see also Browne, supra note 8, at 9 (noting that “racism and antiblackness undergird and sustain the intersecting surveillances of our present order”). Much attention has been devoted to the state’s largely uninhibited ability to monitor the digital sphere 16 See, e.g., Gregory Brazeal, Mass Seizure and Mass Search, 22 U. Pa. J. Const. L. 1001, 1008 (2020) (“[T]he Fourth Amendment has not yet come to terms with the government’s historically unprecedented ability to conduct digital surveillance on a mass scale.”); Steven I. Friedland, Of Clouds and Clocks: Police Location Tracking in the Digital Age, 48 Tex. Tech L. Rev. 165, 166–70 (2015) (questioning whether sufficient boundaries exist to limit a largely invisible mass surveillance and tracking regime); Rachel Levinson-Waldman, Hiding in Plain Sight: A Fourth Amendment Framework for Analyzing Government Surveillance in Public, 66 Emory L.J. 527, 529–30 (2017) [hereinafter Levinson-Waldman, Hiding in Plain Sight] (proposing a framework for applying the Fourth Amendment to increasingly sophisticated government digital surveillance technologies). and to disparities between the surveillance of Black and non-Black communities. 17 See Sahar F. Aziz & Khaled A. Beydoun, Fear of a Black and Brown Internet: Policing Online Activism, 100 B.U. L. Rev. 1151, 1153 (2020) (arguing that government agencies disproportionally police the political activities of communities of color and that disproportionate policing is reflected in law enforcement’s surveillance practices); Matt Cagle, Communities Under Surveillance in California, ACLU N. Cal. (Nov. 21, 2014), https://www.aclunc.org/blog/communities-under-surveillance-california [https:// ‌perma.cc/‌K8JC-LT4E] (“[S]urveillance technology is frequently and disproportionately used on minority communities without their knowledge or consent.”). Less attention has been devoted to the connection between rapidly expanding digital surveillance and its place in the history of racialized surveillance. 18 Malkia Amala Cyril, Black America’s State of Surveillance, Progressive Mag. (Mar. 30, 2015), https://progressive.org/magazine/black-america-s-state-surveillance-cyril [https://‌perma.cc/‌JPJ9-6MGD] (“As surveillance technologies are increasingly adopted and integrated by law enforcement agencies today, racial disparities are being made invisible by a media environment that has failed to tell the story of surveillance in the context of structural racism.”). In particular, what is missing is an approach that pulls from the legacy of racialized surveillance to catalyze new ideas regarding how to limit the state’s digital surveillance capacity. 19 See Browne, supra note 8, at 16 (defining racialized surveillance as “a technology of social control where surveillance practices, policies, and performances concern the production of norms pertaining to race”). Courts struggle to prescribe legal limits to the government’s power to conduct digital surveillance. 20 Susan Freiwald, Cell Phone Location Data and the Fourth Amendment: A Question of Law, Not Fact, 70 Md. L. Rev. 681, 681–82 (2011) (explaining several reasons courts consider so few challenges to online surveillance, including lack of precedent and a weak statutory regime). An approach grounded in a racial–historical framework may create solutions capable of overcoming the hurdles associated with challenging the scope and exercise of law enforcement’s surveillance capacity. This Note homes in on a particular form of digital surveillance—social media surveillance—and focuses on a community particularly susceptible to the surveillance regime’s most detrimental consequences: Black Americans.

This Note argues that contextualizing social media surveillance in a larger racial–historical framework—what this Note characterizes as the Critical Race Theory (CRT) lens—provides a path to address gaps in the legal framework concerning digital government surveillance. This framework proves useful not only by centering groups that bear the heaviest consequences of government surveillance, but also by providing a pathway to overcoming a recurring legal impediment to challenging government surveillance programs: judicial standing. 21 Scott Michelman, Who Can Sue Over Government Surveillance?, 57 UCLA L. Rev. 71, 74 (2009) (“Unfortunately, the law of standing in the context of secretive government surveillance is in disarray, with serious consequences for the substance of constitutional adjudication and the separation of powers.”).

A plaintiff must possess standing to sue in federal court. In other words, the plaintiff must demonstrate that the defendant caused a concrete injury and establish that a judicial decree can provide redress. 22 Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 101 (7th ed. 2015); see also infra section I.B.1. Standing requirements, however, have been unclear in the surveillance and data breach contexts, leaving some to wonder if anyone can meaningfully challenge the constitutionality of a government surveillance program before harm has been inflicted. 23 Brandon Ferrick, Comment, No Harm, No Foul: The Fourth Circuit Struggles With the “Injury-in-Fact” Requirement to Article III Standing in Data Breach Class Actions, 59 B.C. L. Rev. E. Supp. 462, 481 (2018) (“Until the Supreme Court clarifies the requirements for injury-in-fact within the data breach context, plaintiffs will be continuously rolling the dice on whether they actually are harmed before they ever approach the merits of their claims.”); see also Michelman, supra note 21, at 77–84 (explaining the background of the law of standing in the surveillance context and arguing that courts hold surveillance plaintiffs to a higher standard of showing harm than in other contexts and in some cases do not recognize harm at all). The CRT approach helps resolve this ambiguity by demonstrating the likelihood that unchecked surveillance will inflict harm on Black communities, akin to how litigants have established standing in other contexts. 24 For example, in Pennell v. City of San Jose, a landlord and a homeowner’s association challenged a city rent control ordinance. 485 U.S. 1, 6–7 (1998). The Court found that although the challenged ordinance provisions had not yet been enforced against the plaintiffs, “[t]he likelihood of enforcement, with the concomitant probability that a landlord’s rent will be reduced below what [they] would otherwise be able to obtain” constituted sufficient threat of direct injury to establish standing. Id. at 8. Similarly, in Monsanto Co. v. Geertson Seed Farms, the Court found that a party demonstrated sufficient risk of harm to establish standing in the regulatory context. 561 U.S. 139, 155 (2010). The case involved a district court’s vacatur of a decision by the Animal and Plant Health Inspection Service to deregulate a variety of alfalfa (RRA). Id. at 144. The respondents, environmental groups and conventional alfalfa growers, sought injunctive relief from the deregulation order. Id. The petitioners, owners, and license holders of the property rights to RRA claimed that the respondents lacked standing because they failed to show they suffered a legally cognizable harm, since the deregulation order had not actually been put in effect. Id. at 153. The Court, relying on the district court’s record, held that the respondents did have standing because they established a “reasonable probability” that their crops would be infected if RRA were deregulated and that the substantial risk of infection itself was a cognizable legal injury sufficient to establish standing. Id. at 153–55.

This Note deploys the CRT approach—integrating historical context into constitutional challenges—as a new way of addressing government surveillance through courts. Part I lays out the landscape of the social media surveillance regime and explicates current standing doctrine in the surveillance context. Part II discusses how social media surveillance fits into the larger narrative of racialized surveillance—framing social media surveillance as the latest iteration of a larger legacy—and outlines in greater detail two particular consequences Black communities face vis-à-vis government surveillance: overcriminalization and political suppression. It also shows how recent case law may leave the door open to challenging government surveillance through the courts. Part III lays out the CRT approach, drawing on recent cases exemplifying its ability to resolve problems associated with legal challenges to government surveillance. It concludes by elaborating on the future of surveillance imagined from a CRT ethic.