Abstract
Private surveillance is rapidly reshaping public space. With inexpensive storage, widespread amplification, and integrated data sharing, modern surveillance networks operate with unprecedented scale, prevalence, and influence. Unlike the neighborhood watches of the past, these networks are always on, subjecting public movements to facial recognition from doorbell cameras, license plate readers tracking car movements, and motion-activated alarms that deter all but the most temporary uses of public space. On hyperlocal social media, people lob unverified accusations and bigoted blame toward perceived outsiders. Fostering a constant atmosphere of fear, technology vendors are better able to sell a suite of new products, more costly subscription services, and even private security forces.
On the one hand, private surveillance can help individuals feel safer, provide some information about goings on in their community, and potentially deter crime. But on the other hand, private surveillance enables a subset of the community to decide who belongs in a neighborhood and police the acceptable uses of public space. Over time, the targets of private surveillance become broader and broader, chilling public movement and straining community ties.
Common regulatory approaches tend to focus on government surveillance or consumer protections for the people who purchase a security device. While these efforts address important issues, they can fail to reach the impact that private surveillance has on the broader public, which includes individuals who have no contractual relationship with surveillance companies. Finding limited redress for the public harms of private surveillance, this Article advances a framework rooted in tort law. This framework (1) theorizes public harm; (2) outlines how to assess the reasonability of an interference; and (3) evaluates whether a particular person or entity can be held legally responsible for the harm. This flexible framework can be adjusted to inform legislative responses as well as actions rooted in private law.
