There is a Wired excerpt circulating this week from a new book by law professor Andrew Guthrie Ferguson, and its central argument is this: the body you carry into the world — its face, its gait, its biometric signature — is increasingly treated as a searchable document, raising questions about whether the Fourth Amendment is equipped to protect it.
The piece is written as a revelation. For Black Americans who have watched facial recognition software misidentify their faces in cases that have led to wrongful arrests, who lived through COINTELPRO’s surveillance architecture, who have navigated a carceral system that has long treated Black bodies as evidence — the revelation is the part that requires the most careful interrogation.
The technology has advanced rapidly. Facial recognition is now deployed in airports, retail stores, stadiums, and police precincts. Fitness trackers and smartwatches generate continuous biometric data streams: heart rate, sleep patterns, location histories, movement signatures. That data sits in corporate servers governed by terms of service that few people read. Law enforcement access to it has created a parallel surveillance infrastructure, often obtained through subpoenas, data purchases, or legal gray areas that do not always require a traditional warrant.
In Chicago, this is not abstract. The Chicago Police Department’s Strategic Subject List — a predictive algorithm that ranked residents by their estimated likelihood of being involved in a shooting — tracked more than 300,000 Chicago residents at its peak. African Americans accounted for more than half of all individuals on the list. According to data reviewed by Chicago Magazine, 56 percent of Black men aged 20 to 29 living in Chicago had an SSL score. For white men in the same age range, the figure was 6 percent. Of the individuals with the highest risk scores, 85 percent were African American men. The algorithm did not include race as an input variable. It did not need to. The city’s policing patterns and arrest history encoded race into the output anyway.
“These databases — which captured data on more than 300,000 individuals, disproportionately people of color — have finally been decommissioned. Given the years of public criticism and a study showing them ineffective, CPD never should have used them at all.”
— Karen Sheley, Director of Police Practices, ACLU of Illinois
The SSL was retired under public pressure, but the underlying appetite for surveillance infrastructure has not changed. Biometric surveillance has only expanded nationwide. Gait analysis software is being developed for use in public spaces. Immigration and Customs Enforcement has accessed driver’s license photo databases in ways that have raised legal and consent concerns in multiple states. State and local fusion centers are pooling commercial data with law enforcement records in ways that rarely generate headlines until someone is wrongly arrested.
Ferguson’s book arrives in a moment when the federal government’s data collection ambitions have expanded, when trans and immigrant communities are acutely aware that the data their devices hold can be subpoenaed, shared, or leaked — and when the gap between who is protected by privacy law and who is surveilled through it has rarely been more consequential. Know thyself, the old adage goes. Right now, the state knows you first.