Professor Friedman is the Jacob D. Fuchsberg Professor of Law and Affiliated Professor of Politics at New York University’s School of Law and the founding director of the school’s Policing Project. He is the author of Unwarranted: Policing with Permission and many academic articles in law, politics, and history. He also publishes regularly in the popular media.
This article argues that, as a matter of constitutional law, government agencies that engage in policing cannot collect digital data, particularly about individuals for whom there is no suspicion of wrongdoing, without a sufficient regulatory scheme in place. A sufficient regulatory scheme justifies collection, achieves a public end, and has adequate protections for individual rights. Unauthorized and unregulated bulk digital collection of surveillance data simply may not occur.