Concentrated Surveillance Without Constitutional Privacy: Law, Inequality, and Public Housing


Equal treatment of citizens under the law is a supposedly central value in the American legal system, and yet laws often contribute to the further entrenchment of inequality. This Article utilizes qualitative social scientific data to shed light on the differential impacts of law. In particular, this Article asks how vulnerable individuals and families interface with daily residential surveillance. What protections can they expect in the aftermath of recent constitutional developments in the area of rights and technology? Do those developments affirm equality, or do they further entrench inequality? Understanding the dynamic between interpretation of the Fourth Amendment and social and economic inequality contributes to solving the larger puzzle of why, despite its commitment to equality, law often constitutes and reproduces inequality. A case study, this Article explores specific language from the 2018 landmark Supreme Court decision in Carpenter v. United States, 138 S. Ct. 2206 (2018), which held that government access to cell-site location information (CSLI, or cell phone tower pings) data collected and stored by wireless phone carriers constituted a search under the Fourth Amendment, thus requiring a warrant based on probable cause.

Central to the Supreme Court’s determination in Carpenter is a distinction between conventional and new technologies, as the Court declared, “[o]ur decision today is a narrow one. . . . We do not . . . call into question conventional surveillance techniques and tools, such as security cameras.” In granting a significant constitutional rights protection to cellular telephone users, Carpenter held the potential to finally extend similar protections to those subject to residential surveillance by the government. In both cases—precise location and movement tracking through cellular telephones and around the clock location and movement recording through imposed camera surveillance—those whose data is collected are deprived of a shelter of privacy if the government can access such data on demand. However, the location and movement data collection which Carpenter was limited to leave intact a type of personal data collection associated with housing and employment precarity, family instability, and over-policing with which many vulnerable populations must live within public housing and impoverished urban neighborhoods.

Grounded on original interviews with New York City public housing residents, this Article contributes a different approach to the policy and doctrinal matters raised in Carpenter—an approach that forestages the real-world impact of the seemingly aseptic doctrinal distinction between conventional and new technologies—thus shedding light on one of the myriad ways law’s commitment to equality fails to deliver.


Stanford University Stanford, California
  • Lisa Lucile Owens, Concentrated Surveillance Without Constitutional Privacy: Law, Inequality, and Public Housing, 34 Stan. L. & Pol'y Rev. 131 (2023).
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