Big Brother and Big Data
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Constitutional Conversation with Barry Friedman
In a way George Orwell—the author of the dystopian surveillance novel, 1984—tried to capture but never could actually have imagined, policing authorities are collecting vast amounts of information on all of us. Artificial intelligence is being used to make sense of this massive data grab, capable of presenting intimate pictures of our lives. Proponents argue this will make us more safe. A remarkable, recently-declassified report from the Office of the Director of National Intelligence paints a different picture: “in a way that far fewer Americans seem to understand, and even fewer of them can avoid,” data is being collected “on nearly everyone that is of a type and level of sensitivity. . .that could be used to cause harm to an individual’s reputation, emotional well-being, or physical safety.” ODNI neglects one harm that preoccupied Orwell and should be on all our minds: the risk of totalitarian government. Should the data be collected? Should these AI analytics of our lives be permitted? All of this is of crucial importance, and will be discussed, but there is a prior question that courts and policing agencies are ducking and needs to be addressed: Is any of this constitutional? And does (or can) our very old Constitution provide any safeguards?
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Barry Friedman is the Jacob D. Fuchsberg Professor of Law and Affiliated Professor of Politics at New York University. For several decades he has written, taught, and litigated about constitutional law, civil rights, judicial procedure, policing, and public safety. He is the author of The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009), which won the American Bar Association’s Silver Gavel Award, and Unwarranted: Policing without Permission (2017), as well as numerous academic publications on topics of constitutional law, the courts, policing, and public safety. He writes frequently in popular media, including The New York Times, Slate, the Los Angeles Times, Politico, and the New Republic. He, along with co-authors from law and the social sciences, published an interdisciplinary set of teaching material, Judicial Decision-Making: A Coursebook (2020). He also is the co-author of Open Book: The Inside Track to Law School Success. He was awarded the Podell Distinguished Teaching Award for his classroom teaching. Friedman is the Founder and Faculty Director of the Policing Project at NYU School of Law. The mission of the Policing Project is to bring democratic accountability to policing and public safety, and to ensure that it is equitable and effective. He also served as the Reporter for the American Law Institute’s Principles of the Law: Policing.
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