Legal scholar calls for regulation of data-driven surveillance in policing

In March 2020, a police officer in Westchester County, N.Y. stopped a driver named David Zayas, ostensibly because he was speeding. “But that’s not why Zayas was stopped,” said New York University law professor Barry Friedman at a Tuesday lecture hosted by the Stanford Constitutional Law Center. “Zayas was stopped because an AI algorithm indicated that he should be stopped.”

Relying on a massive database of automated license plate scans and partnering with a private AI company, Westchester police were able to trace the movements of individual drivers. In Zayas’ case, the algorithm “determined that he was trafficking in drugs,” based on his movements and previous criminal record.

The AI tool was ultimately proven right — illicit drugs, weapons and tens of thousands of dollars were found in Zayas’ car. Yet, Friedman also identified a “dark side” of data-driven policing, including misuse by law enforcement and instances of police brutality.

Amid the ongoing debate over the benefits and harms of these methods in policing, Friedman argued for a position that acknowledged both. “You should look at the benefits that they afford society, but you should also have a clear eyed view of the harms, and then not just weigh them, but actually figure out whether, through regulation, we can figure out a way to maximize the benefits while minimizing or eliminating the harms,” he said.

Friedman delivered his remarks at Stanford Law School. His lecture, titled “Big Brother and Big Data” in reference to George Orwell’s dystopian novel 1984, spotlit the prevalence of data surveillance in American policing and the question of its constitutionality.

Outside of his role in academia, Friedman has litigated, written for major publications and authored books on issues of constitutional law, civil liberties and policing. His 2009 book The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution won the American Bar Association’s Silver Gavel Award. He also founded NYU Law School’s Policing Project, which advocates for “public safety through transparency, equity and democratic engagement.”

Friedman began by outlining the concept of “indiscriminate data surveillance,” in which police collect vast amounts of information to identify suspects, rather than surveilling people whom they already suspect.

“The police are capturing data on all of you, all of us, whether we’re suspected of something or not, and storing it away in bulk,” he said. Their methods include visual surveillance, forensic data terminals, DNA databases and making deals with data vendors and brokers, he explained.

In Friedman’s view, this form of surveillance not only carries risks of misuse but is clearly unconstitutional under the Fourth Amendment, which protects against “unreasonable searches and seizures” by the government.

“The point of the Fourth Amendment is to avoid unconstrained discretion in government officials — arbitrary decisions,” he said. “The Fourth Amendment is written precisely to prohibit the thing that police are doing now.”

The potential authoritarian applications of data surveillance were another concern for Friedman. “It’s just true time and again, all over the world, that governments that want to control all the actions of their citizenry do that with information,” he said in an interview with The Daily. “There’s nothing like the collection of data that provides that information to those regimes to make sure that people behave.”

Friedman’s lecture explored the body of existing case law on surveillance issues to propose that a “regulatory regime” by legislatures could create safeguards against harms and allow the Supreme Court to find certain policing practices constitutional.

Such regulation could involve “a statute, and that it mandates that the data be everybody’s or there be a basis for singling out a certain group, and that there be things like retention limits for how long the data is used,” he told The Daily.

Brian Hofer, a privacy advocate who drafted San Francisco’s 2019 ban on facial recognition technology by city agencies, questioned Friedman’s call for a “third way” that accommodates potential benefits of the technology, arguing this could erode privacy protections further.

“I think it’s super problematic to let all of this go on in completely unregulated fashion,” Friedman replied. Data surveillance in policing, he said, “is the future that we are coming to. The question is, how do we manage it?”

Undergraduate attendees told The Daily they found Friedman’s lecture engaging and were struck by the extent of data surveillance in policing.

“I wasn’t really considering the breadth of data that was collected, and also the implications for buying third party data, how that actually might go against the constitutionality of this,” Sebastian Ingino ’25 said.

In the debate over bans versus regulation, Shaye Story ’25 offered her opinion that “an all-out ban is a lot harder to accomplish than just some limitations.” Story suggested that, even if ideal, an all-out ban would be almost impossible to pass. “So maybe baby steps are better than a big leap,” she said.

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