347 | Andrew Guthrie Ferguson on How Your Data Will Be Used Against You

0:00:00.2 Sean Carroll: Hello, everyone, and welcome to the Mindscape Podcast. I'm your host, Sean Carroll. As I'm recording this, the week that I'm recording this, one of the many, many things that appeared in the news, things are appearing in the news too quickly for any one of us to keep track these days. But one of them was a bit of a conflict between the US Government and Anthropic, the AI company. Because the Defense Department wanted to use AI from Anthropic in some of their applications, and Anthropic wanted certain protections that it wouldn't be used for purposes that they didn't approve of. The Defense Department did not go along, and therefore the whole thing fell apart. And there was much shouting and cursing back and forth, and who knows how the thing is going to settle out eventually. But the one thing I wanted to point out was most of the attention was given to the fact that Anthropic didn't want its AIs used in autonomous weaponized drones. That is to say, just put a killing machine out there and put it in the control of the AI. Anthropic did not like that idea. And it's an important debate to have an important consideration.

0:01:10.0 SC: But there was another thing that they also cared about quite a bit, which was the use of their AI for surveillance. Of course, the AI is not collecting the data. The AI is not out there with a video camera. But as the CEO Dario Amodei pointed out, once you have AI, the way that you can use surveillance data changes dramatically. It's very easy to imagine that there is a lot of surveillance data so much that it almost can't be misused because it's just too hard to search through it, at least not without some very, very specific target. Until you have AI, now, you can search through this huge data set and basically surveil everyone in the United States without their knowledge in a very effective way. So they didn't want that to happen. Today's podcast is about a closely related topic, one that, you know, that set of issues is definitely connected to, the whole idea of what our guest, Andrew Guthrie Ferguson calls self surveillance and how it will eventually show up in courts and police investigations and things like that. So his new book is called 'Your Data Will Be Used Against You', in case you were ambiguous about what he's actually trying to say.

0:02:30.0 SC: You know, these days we have not only smartphones, but smart TVs, smart dishwashers, smart watches, smart cars, and they're all sending data somewhere, not to mention devices that you literally talk to, like your phone or your Alexa, or for that matter, devices that literally surveil you, like cameras in your house, both inside and outside. That data goes somewhere, and you might think that it's kind of like wiretapping, right? I mean, basically, we're wiretapping ourselves all the time. And you might think that there are legal safeguards to prevent the misuse of this data. Turns out, not so much. There are some legal safeguards, but the pace of legal progress is much, much slower than the pace of technological progress. So we are opening ourselves up, everyone, to being surveilled by the government without our permission in ways that the protections that many of us would like to have put in place aren't there yet. So it's something to think about both in terms of supporting action against this, whether at the legislative level or the police level or whatever, and also thinking a little bit about what you do yourself with your data and how you can protect it. So these issues are much more relevant to our everyday lives than a typical Mindscape episode. That's okay. We're allowed to be relevant now and then. Let's go.

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0:04:16.2 SC: Andrew Guthrie Ferguson, welcome to the Mindscape Podcast.

0:04:18.6 Andrew Guthrie Ferguson: Thank you so much for having me.

0:04:20.6 SC: So your book, which has the lovely title, 'Your Data Will Be Used Against You. So there's no beating around the bush there. There's no ambiguity or possibility. It's just an imperative. Usually I don't do this, but you start the book with a very gripping little anecdote, I guess, or allegory. You say, talking about, when you teach your classes at the law school, how do you get them to appreciate what's going on here? So why don't you just tell us that little story?

0:04:50.3 AF: Yeah. So I begin my seminar class at GW Law School with a question for these wonderfully young, eager, and digitally conversant citizens. I asked them if any of them have traveled over the last break, because we're just coming back from school, and almost all of them have traveled somewhere to the law school. And then I asked them if they used a map to get there. And I get the puzzled looks of maps? [laughter] Like those paper things our grandparents used? And then I asked them, well, how many of you used... You know, asked for human beings for directions, and no one wants to raise their hands. And then I asked them, well, how many of you use those magic devices in your pockets or the GPS that automatically shows up in your car to get around and travel? And of course, everyone raises their hands. And I say, how many of you know that that data is available for police and prosecutors and can be used against you in a court of law. And some hands raise all sheepish looks to the side and I say, will any of you change that choice? And they say no.

0:06:05.1 AF: And that's what the book's about. It's about the trap of self surveillance. We have built our lives around these digital conveniences, whether they're Amazon Echos or Alexas in our homes, or any modern car is basically a surveillance device that's tracking you. Or smart watches that record your heartbeats, or smartphones that obviously we use to communicate. Our digital lives are revealing who we are and what we do. And every time you purchase a smart device, you're really purchasing a surveillance device. And the class and the book are trying to wrestle with those choices about whether we think that these are really the wise choices. And could we live in a world where we could have all that digital convenience? But maybe also have some protection so that data might not be used against you.

0:06:55.8 SC: Do you yourself use Google maps?

0:06:57.9 AF: Of course. I can't get to my kids' soccer games. I mean, we have to travel all over the world. I always wonder what I would have done. I mean, I grew up, I'm old enough to both have actual maps of my older cars and have those little triptychs you used to go to AAA and they would literally print out maps where you could turn the page and see the next map on a long trip. So I know that world, but without Google Maps, without the maps in my car, I would be lost every weekend.

0:07:27.3 SC: And I think that this is probably gonna be a theme that we'll hit over and over again in the conversation. But that by itself is an extremely illuminating anecdote because you can recognize, and you in particular recognize it as well as anybody, the dangers of our self surveillance regime. But we do it anyway because it's so convenient and important to us and we just have to figure out how to allow for that convenience. Right?

0:07:52.5 AF: Yeah. So I mean, the book is a meditation. It's not a condemnation of why we choose these things. Like, I understand why people put, you know, security cameras outside their front door like Ring doorbell cameras. I understand why people might have a camera in their home to watch their cat while they're away. I get that there are reasons for this desire to know about our own, like medical circumstances with our, you know, our sleep patterns and everything else, but the thing that we haven't wrestled with as a society is each one of those devices is watching us. And we know that because we bought it for that reason. [laughter] But we also think that we are protected from the government getting access. So if you walked out of your house with a No Kings protest sign, well, your doorbell camera probably recovered it.

0:08:44.8 AF: If you drove to the protest in a car that's recording where you're going, which of course it does, because that's how map system works. Right? It doesn't work if it's not tracking you all the time. Well, guess what? Someone can figure that out. And in a world where we have seen both, you know, just in the last couple of months, you know, the weaponization of sort of political prosecutions, and in a world where what we consider crime might change, whether you're talking about seeking like, you know, abortion or kids who wanna get gender affirming care, the risk of who could be criminalized has expanded. Well, at the same time, and this is a complication, people do really bad things. [laughter] We want police to have access to some of that data. We want police to solve what would otherwise be an unsolvable crime because the individual who is involved like left a digital trail behind them. And so coming up with that balance is what this book is trying to do of trying to wrestle with our own like human desire for this consumer convenience. At the same time, the vulnerability it puts us all in because we've exposed ourselves in a digital world.

0:09:51.8 SC: Yeah. And you're a law professor. Obviously the book deals with technology a great deal. But I am interested in both the technological side and the legal side. Maybe it'd be good to ground us, those of us who are not experts. What was the landscape like, you know, I don't know, 50 years ago? How many years ago, you have to go back before there was all this self surveillance vis a vis, of course, data was collected on us in some sense. There was eyewitness testimony or whatever and there were some legal safeguards in place.

0:10:21.4 AF: So, you know, the scale, scope and sort of aggregation of data has radically transformed the power police have. And yet most of our law still exists in an analog world. So when I teach criminal procedure, I have to explain to my students like what microfiche is, because there are cases that are still controlling cases that involve the police going to a bank and getting the microfiche data or microfiche information from the bank records. The seminal Fourth Amendment case that defines whether or not we have a "reasonable expectation of privacy" is a case involving a payphone that you had to put a nickel in and FBI agents who wanted to record it had to bring a reel-to-reel tape recorder and literally put it on top of the payphone and press record, wait for the guy to do what he was gonna say and come back and press stop. And all of those technologies, one has to explain to, you know, 23 year olds who live in a world where there are microphones and everything and they've never seen a payphone. And at the same time, the law that has governed that has not really updated to this new world.

0:11:33.5 AF: And so part of what the book does is to show how we have built this sort of self surveillance trap without necessarily building the sort of similar architecture of either constitutional rights under the Fourth Amendment or even Statutory Rights like Congress could come in and change this balance of power. But they haven't. And so as a law professor, I'm in a sort of position where I can see the technology moving at a very advanced pace with AI, it's going even faster than we ever could have imagined. And I see the law that literally doesn't change in case book after case book because I'm teaching it and have been teaching it for the last 16 years the same way. And that disconnect is also a reason to sort of try to raise this issue with the reading public or the podcasting public and talk about it, because I think it deserves a debate.

0:12:27.4 SC: So you dropped a couple of ideas in there that are crucially important. I want to be gentle to the listeners who are either not in the United States or just not really up on criminal law and criminal procedure. One big concept is the fourth Amendment, My favorite amendment actually, of all the first ten, anyway, tell us what that is?

0:12:46.8 AF: So in the Bill of Rights of the United States Constitution, the Fourth Amendment talks about that the government is not allowed to search persons, papers, homes, or effects. There's a requirement that it not be an unreasonable search is a requirement. Nowadays we think that there might be a requirement of a judicial warrant to get access to some of those protected things. The case that I was talking about with the payphone is a case called United States versus Katz that basically said we can interpret the Fourth Amendment in the modern age to ask whether or not someone has a reasonable expectation of privacy. And that term doesn't really mean what you think it means. You have to go to law school to really understand what it means. But it basically says whether or not something is a "search" for Fourth Amendment purposes. And again, we're talking about unreasonable searches, is whether or not it violates an expectation of privacy. So, easy example, your home. Your home is a place of privacy. You live with your family, you live by yourself. The things that you do in your home generally cannot be seen by law enforcement.

0:13:56.8 AF: And it is pretty much accepted that in order for police to go into your home, they need to have a judicial warrant because you have a reasonable expectation of privacy in your home. The hard question is, what if you have cameras in your home that don't just stay in your home, but are also going to a third party cloud provider like Google or Amazon? What happens if you have microphones in your home called Echo Devices that are going to Amazon? What if the police want to get access from things in your home, but they're not going to your home, they're just going to the third party, the private company you asked to hold this data for you. Do they need a warrant? It's an open question. Why? Because it's hard to know whether or not you have an expectation of privacy in the data that this third party holds. And so the questions that arise in the Fourth Amendment are whether or not the police need a warrant to get access to certain more private privileged information. And then if they do, what are the steps they have to do to convince a judge to sort of violate that sort of expectation of privacy with the judicial warrant?

0:15:02.2 SC: That was wonderful. Thank you. And the other idea, I think it's gonna become very clear to the people who are listening here, was you dropped the idea of controlling cases. And this just fascinates me. Like, if the whole Physics thing didn't work out, going to law school was definitely one of the possible things that I would have done.

0:15:18.7 AF: It's not too late. It's not too late...

0:15:19.9 SC: Well, it is. Yeah, it's not too late. That's true. I like to say that to other people, so I should listen to it myself. But, you know, the Fourth Amendment is obviously all the parts of the Constitution, hugely important, but a little vague. You know, they don't just spell out every nook and cranny of possibility. So not even legislation spells out every nook and cranny of possibility. And we expect court cases to tell us what the Constitution and what the laws mean. Is that more or less right?

0:15:49.9 AF: Yeah, and it's great to think about it in the world of technology. So, for example, obviously at the time of the founding, when the Fourth Amendment was drafted, the Founding Fathers did not have smartphones. They did not. Obviously, if you think about the information in your smartphone, it is very private. It not only holds probably all of the photographs that you've had for since you've had your phone, it has all of your emails, it has your texts, it might have your financial information, probably has the choices you've made of what things you wanna read, maybe apps, the New York Times or Fox News, or whatever reveals about you. And so there's a question that came before the United States Supreme Court about whether or not police need a warrant to go into your phone to find evidence. In that case, the detectives thought there would be incriminating evidence on this gentleman's phone. They went in without a warrant. And it goes up to the Supreme Court to decide what does the Fourth Amendment mean in an era of smartphones? And in that case, the court said, because of the private information in our phone, that the police need a judicial warrant to go into our phone to find that information.

0:16:54.8 AF: Again, adapting, not the statutory law, because the Congress had enacted. And in fact, in the cases where the court is sort of interpreting the new technologies and old law, they usually have a paragraph where they say, please, Congress, please regulate this. You are far better than we are. We're just interpreting a document that was drafted in 1791, and we think that you would do a better job doing this. And Congress, for the most part, has not acted. And so we have the Supreme Court interpreting things maybe for the right in that situation. Because if you think about it, probably the information in your phone is more private than even the things in your house. But that sort of question of whether that we have an expectation of privacy such that the police need a warrant before going into it was an open question. It could easily have gone the other way based on the sort of desires or arguments of those nine justices.

0:17:57.2 SC: And I think this is where it's really sort of fun to learn how the legal system works. Because, of course, if you say, do I want police to have access to my cell phone or emails? I'll say no. But a lot of people then if you said, okay, well, what about the emails of a serial killer or a terrorist? They'll say yes. And there has to be a procedure written down as clearly as possible for distinguishing between the two.

0:18:22.4 AF: And what the book focuses on is exactly that tension, recognizing that there are many... In fact, the book is filled with examples where the police use our data against us in ways that I think many people would be like, yep, I'm fine with that. Yep, you found the murderer. You found the person who shot the person. But what we don't realize, and I'm not against that, I think it makes sense to have the judicial warrant requirement. But there are two things to recognize. One, judicial warrants are kind of weak sauce. It's actually very easy to get a judicial warrant, the standard is probable cause, which is decidedly less than 51%, which would be a preponderance of the evidence.

0:19:02.1 AF: So you can be less right than 51%, probably more like in the 30s there. You can be wrong and still get a warrant. And all you need is a criminal predicate, which doesn't have to be that much. So if suddenly protesting ICE is a crime because you're disrupting federal authorities doing their thing, well, then your data is now available to the government because they have the predicate crime. And the thing that struck me the most about this book and writing this book, researching this book, is there is no data so private police cannot obtain it without a warrant. So your data from your smart bed, your digital diary, your period app that tracks your menstrual cycle, there's nothing without... With a warrant, the police can get anything that you have created. And I'm not sure that's really the balance that we want.

0:19:52.1 SC: Right. So I see the difference. So you're saying that, okay, when you get a judicial warrant, maybe there's certain things that you would have otherwise thought of as private that the police should get, but maybe there's also things the police should really never get.

0:20:05.8 AF: My favorite story about this that's in the book, and this is why I think it's so hard. I think we can all agree that a smart pacemaker that lives in your heart and keeps track of your heartbeat is a wonderful innovation. Right? It saves lives. It's about modern science is exactly the kind of thing we would want to encourage. And there's a person discussed in the book who has one of these smart pacemakers that is revealing to him what his heartbeat is doing so he can stay alive. And it also reveals data to his doctor so his doctor can monitor his health and intervene should something bad happen. And in the case, detectives went to his doctor's office and got the readout of his smart heartbeat and used it against him in a court of law. Why? Because he was also committing insurance fraud. He came up with this kind of arson scheme where he basically burned down his house and asked for insurance money.

0:21:03.6 AF: And the detectives, again, not necessarily doing anything wrong, wanted to disprove his story by showing that his heartbeat did not line up with his story about running around in the fire and everything else. And so you have this, like, conflict. You have a crime. And yet we also might pause and say, maybe we do want to carve out things so that our smart heartbeat, which we otherwise couldn't live without, might not necessarily become evidence against us. Or even if we're... Even if we wanna change that balance, maybe we want a higher standard. Maybe there is some kind of... Maybe it's a warrant, but it's a higher standard warrant. And we just haven't had that debate because we're building these devices into our lives. We're actually pretty dependent on a lot of digital trails, including the map systems in our cars and everything else. And we haven't built equivalent scaffolding of protections for us as we go about our digital lives.

0:21:56.4 SC: Maybe it'd be worth just mentioning some of the other technologies that are broadcasting information about us out into the world. It's not just our phones and our pacemakers. There's clearly cars are doing things and all sorts of appliances in our homes. Cameras, are our security cameras spying on us as well as the bad guys?

0:22:20.2 AF: Of course. I mean, and the funny thing is, when people buy the Ring doorbell camera for the sense that it will protect them, there's some sense of security. You have to recognize that 99.9% of the time, you're just recording yourself.

0:22:36.2 SC: Yeah. [laughter]

0:22:36.3 AF: Right? I mean, like, the things that... Or your neighbors. Right? The odds that someone's gonna steal your package or something bad is gonna happen is pretty slim in the arc of your life. And so what that means is you're creating all of this footage that could be used against you. So if, you know, something happens or people want access to that or go after your kids or whatever it is, you have basically created the data that might be available. And sometimes maybe you think that's okay because something bad happened to you, you'd want the police to get access to it. But on the other hands, you might say, wow, I don't like living with this vulnerability that I could get a knock on the door and detectives would be like, hey, we have a warrant. We'd like access to see who's been coming into your house. I think we would all feel, if that was imposed on us, if tomorrow we learned, oh, by the way, the government is going to take control of your camera and have access to know who's coming in and out of your house, we might all say, oh, that feels a little dystopian. We don't want that. And yet we are building that ourselves. I think just unthinkingly, we're not really seeing that once we build it, they might come for it. Once you build it, they will come. And I think that that is sort of the duality and danger of these new digital conveniences.

0:23:52.3 SC: There's kind of a meme that goes around the Internet of lawyers giving out free advice which says, just never talk to the cops. Just shut up. Like, you know, don't volunteer anything. And it seems that whether we like it or not, we're kind of always talking to the cops. [laughter] We're just, you know, broadcasting information about ourselves, like it or not.

0:24:16.2 AF: I think we're pretty vulnerable. I mean, I do think that we live in this vulnerable... And it's not, you know, my book isn't so much that we shouldn't embrace sort of the digital innovations that exist and make our lives better. It's that we should also agree on limits of certain kinds of information maybe shouldn't make its way into a criminal case. And that a perfect world might be that you could have... That is true. That there will be costs, there will be certain cases that you will not have to bring, or you will just have to bring them like you've done for the last couple of centuries. You just didn't like... You know, the Founding Fathers didn't have cameras in their houses recording anything. And they were probably cases that couldn't be brought because you didn't have that evidence. But we've lived with that. We're okay with that. And that the benefits of this new technology we should embrace, but maybe put some limits on how it could be used against us. And that's what the book is trying to wrestle. It's like, what would those limits look like? Are we okay with them? Shouldn't we be debating them? And what's interesting is that, depending on who's in charge, like, what political power is in charge, we have different senses.

0:25:16.6 AF: Like, a couple of years ago, there was really a concern about people who were Second Amendment stalwarts, people who, like, cared about their guns. They're worried that a Democratic government was gonna come up with a list of people who own guns, and the federal authorities were gonna kick down their doors and steal their guns. And they didn't want a list. They didn't want a database of, like, pretty basic, like, who owns a gun, where. Nowadays, with automated license plate readers, you put that outside a gun show or a gun range or where you buy ammunition, like, you don't need a list. You can literally infer who has a gun by who's going to the gun range. And the fact that people who might be protective of the Second Amendment could realize, wait a minute. I, too, am exposed. Donald Trump's data was used against him, and he was kind of mad about it. [laughter] He was very angry that his texts were being used and all these things were being used. And again, I think there's a bipartisan recognition that the people in power might misuse this power and thus it might benefit everyone if we could come up with some guardrails about who gets access and why.

0:26:21.5 SC: How much do you know about how much of the data that in principle could be collected is actually being collected and stored by these companies? I know that people always have this argument about, why does the Internet start showing me advertisements for things that I only thought about and I didn't [laughter] even search for or anything like that. And they worry that, you know, their phones are listening in on them or their Alexa is listening. Do you know about the veracity of those ideas?

0:26:48.4 AF: There is some truth to it. So take your phone. Like most people have a bunch of apps on your phone, and you don't realize that underneath the app, the reason why you got that flashlight app for free is that the free part was your data and that they are selling sort of your identity as your phone, not you as your name and your address, but your identity as your phone to other companies in a whole network of data brokers. And so whether you have thought about it, one of those things you click, I agree, has also been to give away sort of the advertising part of your phone so it knows, like, where you're going. And those are being not only tracked to sell you things, but there was even a headline today, like today that DHS is using that same advertising thing to go after immigration enforcement. Why? Because of a tracking device, and it's on your phone, and if you have enough information, you can identify, like, the movements of where people are and then eventually identify who they are. And so we are sort of stumbling into a world where our movements are tracked, our purchases are almost always tracked, our likes are tracked.

0:28:02.5 AF: Not just because in social media, you're literally liking things. Like you did the I like that thing. And now when you pressed it, it wasn't like a magic, like, blank thing. You literally were telling another computer that you like this and they're recording that and using it to sell you stuff. And like, almost everything we do in a digital world is being tracked one way or another, usually for commercial gain, Usually it's not for policing gain, but can, with a quick subpoena or warrant, be turned into evidence. And so if you are, you know, Googling, you know, how do I obtain an abortion in Texas? Well, there are people who might wanna sell you things that would be related to pregnancy and whatever or not, but there might also be an attorney general who'd be curious about who is Googling this and should we now look at their data? And so everything we do in this sort of digital space is open because we don't have countervailing protections to close some of that off.

0:29:05.6 SC: And how much are the police actually using this data? Have they become pretty sophisticated at it, or are they not yet caught on?

0:29:12.3 AF: Yes, they are sophisticated, but, you know, I think we're seeing a shift. I think that in the last couple of years, the police would use the data to prosecute the cases. Maybe where we kind of want them to prosecute. Maybe it would be, you know, a cold case where there weren't any eyewitnesses, but someone might have left their cell phone on while they're doing the crimes. You could track them through their cell phone, or it might be like a car leaving the scene, so you could track the license plate or any of those things. And because they involved a lot of times, like victims and, you know, social harm of a crime, we were, you know, not asking too many hard questions about, well, could this data be misused in different ways? I think in the last couple of months, we've seen a more politicized view of prosecution, and I think we have to realize that sort of who could be targeted has changed. You know, I think it's kind of a funny example, but, like Jim Comey, who is a former director of the FBI, a career about...

0:30:13.5 SC: Oh, right. Yeah.

0:30:13.6 AF: As straight an arrow as anyone could imagine, he's currently being charged with his data being used against him, his texts and all this stuff being used against him because he's now in the targeted sites of a arguably political prosecution. And so I think that there are cases where we saw sort of a wise discretion in the sense of maybe we shouldn't use this data. But it was available. It just wasn't being used as much as it could have been. And now we're starting to see prosecutors and police be more comfortable with it. It gets cheaper. It gets easier to manipulate in the sense of just being able to use, like, how do you get access to it? And we're seeing, if you look at, like, the subpoenas for certain kinds of data sets, they're just growing exponentially because police are like, oh, my gosh, I can find out who was at the scene of the crime with a quick subpoena or request to Google, I'm definitely doing that. And so it becomes easier and easier as there's more awareness of these sort of digital trails out there.

0:31:14.7 SC: And on the other side, do a lot of people have the impression, well, as long as I'm innocent, [laughter] I'm okay, or as long as I'm not gonna be the target of a political prosecution. I mean, that's for... That's a worry for different kinds of people?

0:31:26.9 AF: I think that that has been the... I think that is the reason why we're at the place we're at, that the sense was, and this is true, and I think you have to talk about the privilege from which that comes from. Certainly, I think if we talk to like poor communities or communities of color who have seen the surveillance cameras in their neighborhood, have seen the police presence in their neighborhood, they might say, yeah, we've been seeing the surveillance for a long time. This isn't all that new. What are you talking about? I think that the aperture of surveillance has expanded to a more sort of privileged class of people. I think those people with no kings signs out there did not realize they could get caught up in a criminal conspiracy or charge that we're seeing like these large scale prosecutions of people based on what they thought was First Amendment protected activities.

0:32:16.9 AF: I think that as we criminalize things that weren't criminalized before, like access to medical services, who is now potentially, you know, at risk as either an accomplice or, you know, part of the conspiracy to help their daughter get, you know, medical services at a different State, it expands like who is now at risk. And I think that that's a terrible thing and a good thing. It's terrible because obviously the risk is bad. It's a good thing because the people who otherwise could have said, but I don't have anything to hide, might actually see the danger that there is no protection, but sort of the norms or goodwill of good prosecution powers, and that might not be the world we wanna live in. We might wanna have a bit more distrust and concern about how that data could be used or misused.

0:33:08.6 SC: I get that this is, I don't know, a vague feeling, but I get the impression that... You already alluded to it, that it sort of depends on who is in power right now, how suspicious people are of the government. But my feeling is like we used to have a consensus that the government should be able to do certain things, but also there should be checks and balances. And maybe on both sides that consensus is eroding and we want the people who are on our side to be given more and more power to just do what they wanna do.

0:33:36.6 AF: Yeah, I mean, I think that's a danger. Right? I think that the fact that there aren't people pushing back on this sort of overreach of government power is revealing in its own way. I also think that what's happened is like the sort of default has reversed. It used to be that because we didn't have the technology, you go about your life and if police suspected you, they had to spend a lot of time and effort sort of targeting you. Now, with cameras on the streets and automated license plates readers catching every car, we now have all that information. So it's trivially easy to go look for someone or see something, because the default is we've collected all of the data on the off chance we might need it, as opposed to we didn't collect any data, but now we need something, we'll go find it. And I think that the fact that we just have this ubiquitous, cheap surveillance technology now available, has changed the defaults without changing the default, like laws or rules, and that creates this imbalance. That's why I think we should have a new conversation about whether we're okay with this balance. I think it's imbalanced, but, you know, maybe people will disagree and they're willing to trust the government. But I think we should have that debate.

0:34:44.5 SC: I did see an interesting interview recently with Dario Amodei, the CEO of Anthropic, where he made the point that even if you... Given all the data that you imagine collecting, there's just in some sense too much of it. You know, you have all the cameras, all these recordings and things, but AI gives you a way of filtering and sorting through all that data. So it's a combination of just all the data being collected and the way it can be used against a whole bunch of people. I don't know what your thoughts are. Yeah.

0:35:15.6 AF: Yeah. I thought it was interesting that the Fourth Amendment has made an appearance in this sort of debate about Anthropic and the Pentagon and sort of the use of mass surveillance. I thought what was telling was this acknowledgment that AI is a game changer in the ability to use what is otherwise an overload of information, and that maybe some of our protection had just been that we weren't at that technological level where we could just use this overflow of information, and that the comment about why he didn't wanna give the military access to mass surveillance probably should be applied to the AI use among local law enforcement and everything else. But we haven't really had that debate, just as a... Just to make it concrete, so in a city that has adopted a real time crime center, a real time crime center, just picture a centralized command center with lots of video screens with cameras that are recording on the street, but also connected to police body cameras, car cameras, drone cameras, even your Ring doorbell camera can be fused in there and commercial cameras. So from the command center, a police analyst and/or commander can watch the streets so they can see what's going on.

0:36:39.1 AF: They even can click from camera to camera to camera, giving a full visual of a city. But the superpower is you can then run AI on all of those camera feeds and find every object identified by object. So every car, truck, van, bike, tricycle, every man, woman, child, dog, car, foreground and background. So you can have like an open door, a door that's ajar, a window that's open. Every single thing that can be seen can be identified, separated, segregated, and tracked such that if someone is wearing a blue sweater as they walk down the street, you can then search for all blue sweaters in this city. And they will be superimposed in a sort of magical way where you can see all the blue sweaters at once in different locations.

0:37:27.8 AF: And then let's say the bank robber wore a blue sweater, you can then find the blue sweater near the bank, and then you can track that blue sweater through the city in a way that's all object recognition. Now, that kind of like time machine, like you can go back in time, power has never existed in the history of the world, and we now have it. It's unregulated. It has no... There's no like federal law on it. There's an... And I've written a law review article about the Fourth Amendment on it, but, you know, it's a law review article. There's no real law on it, and yet it fundamentally changes police power and the citizen power in America in really hard ways. And that's the power of AI. That's what they're worried about. That is mass surveillance at scale with real consequences.

0:38:12.4 SC: Yeah. And I mean, apparently Anthropic said no, but not everyone says no. So this is gonna be... There's a capitalist aspect to this too, right? I mean, people wanna make money off of these things. And oftentimes collecting data and giving it to the government is gonna make them money.

0:38:27.5 AF: And we've seen that in terms of almost everything we're talking about is not a free device. In fact, if it's free, like, you're the product, right? Your data is paying for it. And so we not only have sort of companies vying for this, but we also have this interesting new world where because the technology is kind of sophisticated, the technology companies are essentially becoming the platform for policing. Right? So you can imagine that your ordinary police chief isn't a data scientist, isn't running the object recognition AI behind it, they're kind of dependent on a private company. And that private company might actually have different and competing interests. Like if you're a private company that's also a public company, like you have public shareholders like Axon, you're actually beholden to your shareholders to maximize profit. That's literally what you're supposed to do.

0:39:20.4 SC: Yeah.

0:39:20.8 AF: If you are a private company trying to sell products so you can sell at other places, you might again have different interests than the public might. Right? We have never outsourced public safety to private companies in the way we're doing now, and it raises some really like difficult questions about whether we really should be doing that.

0:39:43.2 SC: I did wanna ask that scenario you painted with the clearinghouse where people are tracking the blue sweaters, et cetera, was that a hypothetical scenario or cities building those things?

0:39:54.8 AF: Well we have that, they're in 300 different jurisdictions in America, many of your big cities have real time crime centers. And I personally believe it will be the future of policing only because if you watch the power, it's really helpful for police. Right? Police get a 911 call in these modern cities, they can literally go and click on the nearest camera. Maybe they send a drone there to sort of get operational awareness of what they're seeing, what the risk is for the officer. They have a data set of where the location is. So maybe they have past crimes or who lives at that area. They can then go from camera to camera to give the responding officers who haven't even gotten to the scene yet, a full sense of what is about to happen, what they're about to see. And that is all wonderfully helpful from a tactical advantage.

0:40:45.2 AF: It's great for collecting evidence because all those people who might have like scattered to the winds before the police get there are all now captured on camera. Every license plate on the street is now recorded. So you can go back and figure out who was a witness, who was there. It is an incredible like superpower for policing that is not going away because it's gonna help police. At the same time, we haven't built in like rules or regulations. What happens if there's impeaching evidence or exculpatory information in that database? What do you do with that? How does it intersect with the actual like criminal prosecution, like months and months from now? Those are all open questions that the technology has gone ahead of before it sort of, we figure out how it works in like a pretty traditional, still kind of old school criminal trial.

0:41:33.9 SC: Are police edging into the territory of sort of anticipatory policing? Like they're getting the feeling that a crime is about to be committed here?

0:41:44.8 AF: So you know, we've had this interesting experience with like predictive policing. And again, predictive policing sounds more like Minority Report than what it really was. There are two parts to it. There's like place based predictive policing. Like there might be certain areas that are higher risk of a crime. And so maybe we'd send a police car there in anticipation...

0:42:02.2 SC: Sure.

0:42:02.3 AF: Of a crime if the algorithm suggested that, this. And some of it sounds like science fiction, but you can imagine like you know, Friday night at 1:00 AM when the bar is let out, is there gonna be an uptick of robberies? Probably. Why? Because there's a bunch of drunk people with money leaving a bar, it's pretty kind of an easy thing. In certain kinds of parking lots, you might have an uptick of car thefts. Why? Because maybe no police around and there's bad lighting and it's an easy escape route. There's some like logic to some of predictive policing, but of course some of it is hard to do. And in fact most of the early iterations have largely proven unworkable and/or ineffective and have been shut down.

0:42:46.7 AF: There's also person based predictive policing, the idea that we can look at your past, like criminal record, your contacts with police and then sort of predict that you might be more at risk to be involved in a crime. And those experiments have also largely proven to be failures. We saw them in Chicago and Los Angeles and they didn't work. They didn't work either on theory or practice. But doesn't mean that with this new world of more data and more like faith in AI, that we're not gonna see this again. I imagine that we will start seeing some version of predictive policing with AI in the next couple of years. Not because it'll work, but because it sounds good and people wanna always get ahead of the criminal risk. And if you can say you bought some technology that gives you that advantage, like people might be... Wanna buy it whether or not it works.

0:43:38.4 SC: And it does give the impression of being like techy sciencey. Like I wonder if at the level of a courtroom proceeding or something like that, just the fact that evidence is coming from hard data makes people a little bit less skeptical of it than they would be of eyewitness testimony. Maybe they shouldn't be but, you know, it's... It certainly can make mistakes.

0:44:01.2 AF: I think it's true. I mean, facial recognition is a great sort of parallel to what you said with eyewitness testimony. And it's not, you know, 100% easy one way or another. Like, eyewitness testimony is responsible for many, many of wrongful convictions. We know people are bad at making identifications when they're scared, when there's traumatic situations, or across racial identifications, they're bad. But facial recognition also has its own errors. We've seen at least, I think it's up to nine false arrests by people who are absolutely innocent. But facial recognition said that they were the guilty party and they were literally arrested, dragged away from their family and friends, and put to jail before we figured out the error. But you can imagine if you're in court and you're the jury and you don't know, and someone says an algorithm suggested this is a 95% match, and you don't know what that means, it's pretty convincing.

0:44:55.6 AF: And whether it would work in trial or whether it just works for the detectives. And I think that's actually the real danger is that the detectives are not data scientists. They don't know how facial recognition was created. They don't know what a 95% match means. And it's kind of mean or unfair to expect them to know that. And yet they get the printout to say, hey, this is your suspect. The computer thinks it's a match. Here, here, here, go. What are they supposed to do with that information? And we haven't really created the world where either there's a double or triple check on that or even after they act on it, there's a moment to expose the wrongful conviction. Except for when the defense lawyer gets the evidence that this person has an alibi or somewhere else. Many times, the fact that facial recognition was used for an identification doesn't even have to be turned over. So the defense lawyer doesn't even know that facial recognition was the reason why the detectives showed up at someone's house and dragged them away.

0:45:56.4 SC: Do I remember correctly from your book that not only does the fact that the thing came from facial recognition, not need to be turned over, but also if the facial recognition software might have identified other plausible suspects, that also does not need to be shared with the defense?

0:46:11.0 AF: Exactly. And so the way facial recognition works is it basically takes a face print. Think about a fingerprint, but a face print. Right? It's not looking at your face. It's just breaking down the distances between your eyes and your nose, your mouth and your lips and your ears and all those things, and it matches up. And when you query the data set of photos for the match, you have a probe photo, of your suspect, and you put it into a data set. It by default gives you many suspects. It doesn't just give you one. It literally will give you between like six to 100, depending on how you set up your program. So if you're a detective and you say, okay, I want the top 10 suspects, you literally have in your hands, presumably nine innocent people and one person that the computer thinks is the better subject, the better suspect, and the other nine are never turned over to the defense. So the investigation proceeds as if the facial recognition got the person right, where there... It also thought there were nine other people with different levels of certainty. So the top suspect might be 95, below them might be 93, 92, 91. And it could be the case that some of the lesser certainties are actually more likely the person. But you wouldn't know that because you, the defense lawyer, would never get access to that information.

0:47:31.9 SC: Do the defense lawyers typically have... I mean, could they do it themselves? Do they have access to the raw data?

0:47:37.6 AF: They won't have access to the same either data set to do the facial recognition. They might see the probe photo that went into it, but they don't... It's... Usually it's a police database or a DMV, like your Department of Motor Vehicles database in some States.

0:47:55.0 SC: So I guess that leads us to start asking questions about how we could do better. And it sounds like we have to think about the judicial level, the legislative level, the police level, even the personal level. I don't know. I mean, where should we start? What should the strategy be?

0:48:09.0 AF: So, you know, the book sort of divides sort of solution sections into different chapters. One is about, essentially written for judges, for judicial readers, about how we could sort of update the Fourth Amendment to match this digital age and what it would mean in terms of responding to our expectations of privacy in a digital age. Another chapter involves the legislative response of what we could do to sort of build up the idea that we require a warrant. We have this thing that we've lived with since the late '60s called a wiretap. The federal government can go put a microphone in your bedroom or your kitchen and listen to you and your family. They usually do this if you're like in the mob or the mafia or they think you're a terrorist. But in order to do that very, very invasive thing, they have to go to a judge, explain at a higher standard probable cause, why there aren't other ways to get this information, why they need this here. They'll then go back to the judge, explain what they get. They'll minimize the other conversations, like, let's say your kids or the kids in there. And we've lived with this since the late '60s.

0:49:17.7 AF: Like, this is about as invasive as you can imagine. So the book proposes that we should have something built akin to the Wiretap Act, but for these other digital technologies, basically just raises the bar of how police can get it. They can still get it. People aren't complaining about the Wiretap Act because the processes are in place to be protective. And then there's a chapter essentially on what communities can do. I think it's unfair to say what individuals can do because you and I can't negotiate with Amazon or the FBI. But communities can actually do things, sort of push back and get our Legislators to sort of respond to these concerns. We can educate ourselves. I think first step is education about what the problem is. And we can support, you know, making some choices about what we do. Maybe you don't need the cat cam. Like, maybe you don't have to watch your cat. You have cats that survive...

[overlapping conversation]

0:50:08.1 SC: No. You do. You do. Sorry.

0:50:10.0 AF: Many years not having to watch a cat. And we can make some choices there. But again, the point of the book is not to critique people from buying this technology. It's to interrogate whether the protections of that data are as secure as we think they are, and they're not.

0:50:26.1 SC: Now, the analogy with the wiretapping is a great one. I mean, basically, we are now all wiretapping ourselves, and there's not even the same protection for people using that as there are for the real wiretaps. Now, all my knowledge about the wiretap comes from watching The Wire. And I'm pretty sure that most of the time, the detectives just sweet talk a judge into giving them a warrant. And it's not very systematic at all.

0:50:50.3 AF: It's actually... It's relatively rare for its power because you would imagine, like, there are lots of people who you might suspect of criminal activity, and it would be great evidence that you could just listen to their living room conversations. But we don't see it happen that often, in part because you have to show there's no other way to obtain it. You have to show that... You have to report back to the police, you know, to the judge after you've done it. And so it gets sort of saved for, like, the most important cases. Which maybe we're okay for, the more long standing investigations. And I think that maybe that would be a compromise.

0:51:23.4 AF: If you really think someone's doing something horrible and you wanna get access to their Ring doorbell camera, well, convince a judge to a higher standard, explain why there's no other way to get it. Recognize that all the other footage that might have been caught, we won't use. It may catch other embarrassing or other, you know, sort of, you know, things that you wouldn't want public out there. We're only focused on the crime that we can identify and explain. And then maybe society is okay with that. Like maybe that's a compromise that we're okay with. But we don't have that now. In fact, the kind of default is because you recorded it and you uploaded to a cloud and you checked I agree, that you can share with law enforcement, which you did, then they can just share with law enforcement. They might not even need a warrant to get access to it.

0:52:06.0 SC: And how much data is kept over time? I mean, can the... The other thing about the difference with this kind of self surveillance and traditional wiretapping is that the wiretap starts at some moment, whereas the self surveillance is ongoing. Like does Amazon have records of what people are asking Alexa for years to the past?

0:52:28.4 AF: It all depends, right? It's technology dependent, it's company dependent. Depends on how they're monetizing it and/or how kind of aware they are of people criticizing their privacy complaints. Right? You know, some of the apps on your phone that you forgot you have on your phone have been tracking you since you put it on your phone. You don't even know and they've been selling it and reselling it and you've been tracked without even knowing. And it'll go on until you, you know, you probably will keep going because you got a new phone and just download the same apps without even thinking about it. And some of the data gets erased over time. Could actually cost money to store data. It's not actually in the company's interest to keep data that they don't need. So some of it matters, some of it depends on where it gets stored.

0:53:14.0 AF: So Ring doorbell cameras change from sort of storing everything on the cloud to storing things in the actual, like in the camera, which limits the amount it can have... It can hold. But they did that because people were complaining that it was too easy for law enforcement to get access to the camera. They go, okay, well we'll put it in the owner, homeowners. So the officers have to go with the warrant to the homeowner and then you know, the company's out of it. So that's a privacy protective step. You know, Apple has taken many privacy protective steps of locating like they do if you have the face identification on your Apple phone. Like the face print is not stored on the cloud, it's stored on your phone. That's a choice that they made to be privacy protective. So companies can do some of that to protect you. But there, as you said, there's sort of sometimes a race to the bottom where companies will give you something that seems like too good to be true. You know, free access to something and you are not paying attention to that, the free comes with the cost of your data.

0:54:15.2 SC: Was it Ring Cameras who had that super bowl commercial that kind of backfired on them?

0:54:20.5 AF: Yep. So Ring... You know, this is a great story for now, right? Ring advertised what was supposed to be this heartwarming idea that you could find your lost puppy in the neighborhood by activating all of the cameras at once in your neighborhood with their partnership with Flock. And people saw that and said, but that means you can do this for anything. And you have just taken over my camera to find, you know, people who are, you know, protesting or on my, you know, the laborers who are working in our neighborhood or you know, anyone. And they said, wow, that feels kind of invasive. And like the companies are exploiting the lack of law. There's nothing wrong, there's nothing unconstitutional, there's nothing illegal in the sense of it's violating some rules or regulations because there is none. They just said, look, we have the technology, we can do this and we'll build it. And the public reaction was such that maybe they realized there actually is a privacy fear. And I think my suggestion to everyone is that every time you see law enforcement doing something that seems little privacy invasive, remember that they probably can do it to you as well. And like, maybe we should be pushing to change that status quo.

0:55:40.4 SC: Is there an issue with the fact that Silicon Valley or tech developers or whatever, have a certain mindset that might not be the average person's mindset? I mean, not just that they had the capacity to do that thing with the Ring cameras, but that they thought everyone would be in favor of it and they were surprised when people had a backlash?

0:56:01.7 AF: Yeah, I mean, I think that might be part of the concern. Right? I mean, there're definitely people who embrace kind of this digital life that have like the Oura Ring that, you know, and the smart watch and that they're living the quantified life with their smart water bottle. It tells them how much water they've drunk. Like, there's definitely a sense of people who've sort of given up. Like, there are people who give all their data to their, you know, Agentic AI to go, you know, plan their kids' birthday parties or whatever it is. And there's a trust in that. What they don't realize, of course, is all that data now exists in a world that is also accessible to law enforcement.

0:56:37.1 AF: So let's say the federal government is mad at a certain AI company and doesn't like their CEO because he just stood up to them in a public way. Well, guess whose data is now exposed, right? Even the most powerful billionaires in the world, even sitting senators, are exposed by their data. Like, if you are a senator, do you want all your Google searches available to the FBI director? You probably don't. [laughter] It's probably embarrassing, right? Do you want everywhere you've gone? Probably not. I mean, if you're a Supreme Court Justice, you probably don't want all this information out there, right? And yet people live in their sort of protective bubbles because they think privilege will protect them. I think we're now seeing that sometimes it's pretty easy to get on the wrong side of power, and all of that data can be weaponized and used against you.

0:57:24.9 SC: What is your feeling for how much this issue is being taken seriously, whether it's in legislatures or, you know, advocacy groups or whatever? Like, are people raising the alarm, or is this still slipping under the radar?

0:57:38.1 AF: I think it's still under the radar mostly because people have not read my book. So please help me get people to read my book. But I actually... I think that we are... We have sort of been sleepwalking into this moment. And obviously there are lots of distractions and issues going on in America today, but I think this is one of them because it's tying together a lot of themes that are happening. I think people are starting to feel more vulnerable. They're starting to see sort of the creeping sense of, well, all of these, both tech companies, but also government powers, can use all this or consolidated power and information about us to control us, and that suddenly the sense of who is vulnerable is expanding. And this might be the moment where we could have that conversation, recognizing there's no one who is not vulnerable. Right? In a couple of years, the power dynamics may shift, and people who are suddenly in power may not be in power. And the question is, like, do you want all of your data to be used against you when the powers shift and they always shift back and forth. And I think that hopefully that this book starts that conversation. That's why I wrote it, to begin a conversation now. But it'll take people to sort of see the fear and actually feel the fear before we really get any legislative or judicial action.

0:58:58.3 SC: You have a chapter near the end of the book called the Tyrant Test about could certain technology be helpful to a hypothetical autocrat tyrant. Maybe this is an unfair question, but what is the worst case scenario here? What is the truly dystopian future we could fall into if we're not careful enough?

0:59:17.9 AF: I mean, I think we see an image of that in China right now, where there are hundreds of thousands of surveillance cameras with AI recognition on it. A lot of the financial and sort of communications information is controlled through social credit scores and digital. Everything's being done through digital. And a centralized government that wants to use that data for social control can control the population both by what you see, by what you do, how you act. And like, you know, ironically enough, there are upsides in the sense of a lot less crime, a lot less, you know, robberies happening in China, but there's a lot less freedom as well.

1:00:02.0 AF: And so I think that we can kind of see a window of what happens when we put cameras everywhere and we have unrestrained access to the cameras and we have sensors and computers, you know, being monitored by the government, access to information, access to what you purchase, how you communicate, if all of that is monitored, we don't live in the free society we think we live in. And what is sort of fascinating, this is a story, I always say, like, if you imagine tomorrow that the government said, okay, all American citizens have to have a wiretap in their house, they have to have a camera on their door. They need to have... We're gonna have a network of sort of surveillance, like snitches are gonna say what's going on in their neighborhood. We wanna know what you're reading, we wanna know what you're buying. And we're gonna monitor the things you purchase. We might also like, that seems like dystopia, no, no, no. But that's everything you have probably given Amazon, just Amazon, right?

1:01:01.6 SC: Yeah.

1:01:01.7 AF: Because you have an Echo in your house. You have a Ring doorbell camera there. They know you're Kindle reading, they know what you're purchasing through Amazon there. You have the neighbor's app, right? And that's one company that you have willingly not only given, you have paid to give all of your data. [laughter] You're paying them and they have all this information and that's just a company. And like Amazon to their credit is usually like consumer facing. And the reason why I use Amazon, everyone uses Amazon is because they're really good, being good for consumers. And yet the downside is all of that data is available to law enforcement. So if you suddenly become the target, whether you are a senator or someone just critical of the government or both, all of that information can be used to embarrass you or reveal who you are or your family or other interests.

1:01:49.3 AF: And if you think, oh, but we have a judicial warrant, well, if there's a predicate crime of like sedition because you're critiquing the government or you're part of antifa, whatever that means, it's all open. And I think we have grown up in a world where we're okay with that because we thought the companies had our back. But sometimes the interests are conflicted because Amazon also has like federal government contracts. They also have to worry about that bottom line. It's really hard. Like they are relatively privacy protective in some circumstances, but as a US Company, they have to act to a lawful subpoena, they have to act to a lawful warrant. They can't say no because of the legal structure we have. And that vulnerability, I think applies not just obviously to Amazon, who I'm picking on, but to all the companies. Picture the digital communications, whether you're talking about Google or Facebook or any consumer data private, data system, it's all available.

1:02:52.2 SC: I'm not sure if this is a well formed distinction or not, but at the level of legislation that you might imagine getting passed, is it more important to aim at police and criminal procedure or at the companies who are collecting and offering this data to the law enforcement?

1:03:11.9 AF: So in the book I had a choice of whether I wanted to focus on creating sort of a data protection law or data privacy law or a more narrow focused on controlling what police and prosecutors could use. And I chose the former. Not because the... I chose the Police Prosecutor one, not because I don't think data privacy and data protection isn't important. I think it's critically important. But we've seen the Federal Government and Congress sort of fail. They really haven't worked forward toward this. There have been proposals, but I don't have faith that we will necessarily get that answer now. And I think the smaller piece might be something we could compromise on because everyone is equally at risk there. And... And this is what I think is important. In a perfect world, you could have all of the Amazon conveniences of life and not worry that that data would be used against you. And I think that would be a world I would like to live in. I would like to be able to use Google Maps to get to my kids' soccer games and not have Google Maps used against me. And I know that might create a problem if I become involved in a criminal action, but that would be the compromise that I would prefer where I could benefit from smart heart devices or I could benefit from the Oura Ring which I do not own but I imagine why people use it and yet not have to worry that my, you know, blood pressure levels will suddenly be evidence against me in a court of law.

1:04:39.0 SC: I mean, we all are either do or are tempted to use Google Maps and Amazon and so forth. Are there obvious things that like we're doing badly, like there are steps that we can take to clean up our digital footprint a little bit, whether removing apps on our smartphone or whatever?

1:04:58.7 AF: I think you should just ask yourself the question of, is the value add here worth it? For me, Google Maps definitely worth it. Ring doorbell camera, not worth it. But that's just me. I mean everyone has their own choices and makes their own decisions. And I'm not here to criticize people, but I do want people to sort of interrogate like if you put the Ring doorbell camera on, you are actually surveilling yourself more than anyone else. Might also be surveilling the workmen who work in the neighborhood or your post carrier who comes every day, or your kids who are coming back and forth or whatever it is, the people you invite over to your house. Are you okay with that?

1:05:39.1 AF: And maybe your answer is yes. And that sort of balance compromise is okay, but I think we might all be more comfortable in a world where the only way police get access to that camera is not just with a simple warrant, but with something greater. That if you're gonna invade this space that yes I create the data that you can invade, you have to do something more than just ask for it with this criminal predicate, and it has to be a higher standard. And maybe we would then have the best of both worlds. And in fact, I think it's in the company's interest to want this where they would be okay, we'll sell you all the technology. In order for law enforcement to get it, they have to go to a higher standard, that doesn't affect us. We're okay with that. And we live in a world where we can benefit from convene... You know, consumer convenience and not have to worry about the double edge of it.

1:06:23.9 SC: So this is great. You sketched out both a sort of pessimistic scenario and an optimistic scenario for how we can make these compromises. So my last question then is gonna be super unfair. What's your bet? [laughter] What do you think the likelihood is that we'll be able to figure this out without just tremendous abuses along the way?

1:06:45.1 AF: I think that there's probably some low hanging fruit that can be done. I think that from the judicial side, I think it's pretty easy to interpret the Fourth Amendment to be a bit more protective and we'll see the Supreme Court has a case this term about whether the... It's called a geofence warrant, but whether the locational data around a crime can be obtained using because basically Google was tracking everyone's phone at all times. So it's pretty easy to go in and get access to the person who might be near a crime. And so we'll see if they sort of respond in a more digital is different way, thinking that the world has changed from the analog world of their older cases. I think, you know, getting anything through Congress is difficult.

1:07:30.2 SC: Yep.

1:07:31.6 AF: I haven't, you know, been terribly optimistic that we'll see, you know, that kind of progress. But I also think that, you know, we've seen movements grow. I think that the world is waking up to the dangers of centralized law enforcement that might be weaponized for particular political purposes. And so the moment now, I think, is more promising for a consensus to do something than it was even, you know, a year ago. So the danger might clarify the risks and maybe that would lead to some movement forward.

1:08:13.8 SC: All right, the moment now is a wee bit more promising. I'm gonna cling to that as our final message of this podcast. But Andrew Guthrie Ferguson, thanks so much for being on the Mindscape Podcast.

1:08:24.0 AF: Thank you.