Fourth Amendment gaps for digital data

A man was convicted by his own heartbeat — and that's just the beginning of our digital dystopia.

About the Guest

Andrew Guthrie Ferguson is Professor of Law at George Washington University Law School and a national expert on surveillance technologies, policing, and criminal justice. He is an elected member of the American Law Institute and the author of the PROSE Award–winning The Rise of Big Data Policing. His new book, Your Data Will Be Used Against You: Policing in the Age of Self-Surveillance (NYU Press, March 2026), examines how smart devices and digital surveillance are transforming criminal prosecution — and what the law must do to catch up.

About This Episode

Following yesterday’s conversation with Christopher Mathias about doxxing and the ethics of unmasking, Andrew Keen turns to the legal side of the same question: what happens when the data we generate about ourselves becomes evidence? Andrew Guthrie Ferguson joins the show from Washington, D.C. to discuss his new book — a deeply researched investigation into how pacemakers, smartphones, smart cars, and doorbell cameras are being used to convict people in court, and why the law has almost nothing to say about it.

The conversation moves from a man convicted by his own heartbeat to AI-powered real-time crime centres, from Eric Schmidt’s infamous privacy defence to masked ICE agents in Minneapolis, and from Bentham’s panopticon to Ferguson’s proposed “tyrant test” — a framework for designing data protections by imagining the worst leader with access to your most intimate information.

Chapters:
00:00 Introduction: Digital privacy and unmasking
The theme of digital privacy and what it means to be unmasked in a data-driven world

01:25 Meet Andrew Guthrie Ferguson
 Introducing the guest and his new book on privacy, surveillance, and the law

02:10 The Dual-Edged Sword of Digital Devices
 How our everyday devices expose everyone and the complicated trade-offs that creates

03:40 From “Don’t Be Ashamed” to Privacy Nuance
 The shift from early Silicon Valley privacy optimism to a more complex reality

04:45 Regulating Government, Not Google
 Ferguson’s focus on keeping personal data out of court rather than off corporate servers

05:55 The Pacemaker Data Court Case
 How personal medical device data was used as evidence in a criminal trial

07:30 Convicted by His Own Heartbeat
 An arson and insurance fraud case where heart-rate data contradicted the suspect’s story

09:40 Google’s Three-Part Warrant System
 How tech companies helped shape rules for law enforcement access to location data

11:15 The Fourth Amendment Digital Gap
 What reasonable expectations of privacy mean in the modern digital environment

12:45 Digital Privileges and Intimate Data
 Whether certain types of personal data should be legally protected like confidential relationships

14:20 Surveillance Battles on the Ground
 Protests, law enforcement, and the evolving intelligence dynamic in Minneapolis

16:05 “Just Doing Our Job” and State Surveillance
 The common defence of surveillance practices and why it remains controversial

18:10 The Texas Drone Fleet
 Drones as first responders and the expansion of aerial policing technology

20:45 Real-Time Crime Centers and Mass Cameras
 Integrated camera networks, data fusion, and the lack of clear oversight

22:50 The Tyrant Test for Privacy Laws
 Designing privacy protections assuming the worst possible leader has access to the data

25:15 AI Supercharges Surveillance
 How artificial intelligence turns ordinary cameras into powerful tracking tools

27:30 AI-Assisted Police Reports
 Using body-camera audio and AI tools to generate reports and the implications for justice

29:10 No Turning Back From Technology
 Why abandoning digital tools isn’t realistic and why new laws may be needed instead

31:15 Closing: Every Smart Device Is Surveillance
 The idea that modern connected devices inherently function as surveillance tools

Links & References

Mentioned in this episode:

• Your Data Will Be Used Against You — NYU Press
• Andrew Guthrie Ferguson — GW Law School faculty page
• Perplexity for Public Safety — free AI tool for law enforcement
• Previous episode: Christopher Mathias on To Catch a Fascist (Episode 2793)
• Carpenter v. United States (2018) — Supreme Court ruling on cell-site location data and the Fourth Amendment

About Keen On America
Nobody asks more impertinent questions than the Anglo-American writer, filmmaker and Silicon Valley entrepreneur Andrew Keen. In Keen On America , Andrew brings his sharp Transatlantic wit to the forces reshaping the United States — hosting daily interviews with leading thinkers
and writers about American history, politics, technology, culture, and business. With nearly 2,800 episodes since the show launched on TechCrunch in 2010, Keen On America is the most prolific intellectual interview show in the history of podcasting.
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