This Essay analyzes the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technologies, and put market pressure on companies not to cooperate with law enforcement. In practice, however, many of these avenues are limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn citizens into targets. Citizens can extract promises from companies to push back against government surveillance on their behalf but have no recourse if these promises are not enforced. By way of method, this Essay adopts Professor James Gibson’s influential theory of affordances. Originating in psychology, and famous everywhere but in law, affordance theory has evolved into a general method of inquiry with its own useful vocabulary and commitments. This Essay leverages these concepts to lend structure to an otherwise-haphazard inquiry into the capabilities of citizens to perceive and affect surveillance. This Essay contributes to affordance theory by insisting that law itself represents an important affordance.
"Can Americans Resist Surveillance?,"
University of Chicago Law Review: Vol. 83
, Article 2.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol83/iss1/2