Trademarks as Surveillance Transparency
We need a free, public and easily accessible source of information about surveillance technology that might be used to watch us. And I’ve found it in a surprising place: the federal trademark register.
We know very little about the technologies that watch us. From predictive policing to facial recognition algorithms, the lack of transparency around surveillance technologies makes it difficult for the public to exercise meaningful oversight. Legal scholars have critiqued various corporate and law enforcement justifications for surveillance opacity, including national security, trade secrets, and contract law. Freedom of Information requests and procurement policies have been suggested as vehicles for greater transparency. But the literature has overlooked an extensive, accessible, and free source of information about surveillance technologies hidden in plain sight: trademark law. This Article is the first to examine the powerful role of trademark law in exercising oversight within and beyond surveillance.
Trademark law promotes access to information, and the federal trademark application—long overlooked by scholars—process demands extensive public disclosures that reveal a wealth of information about surveillance technologies. After canvassing the shortcomings of existing mechanisms for surveillance oversight that rely on political will, government candor or technical expertise, this Article leverages examples from real trademark applications to explore how the detailed disclosures in trademark applications can be used by journalists, researchers, and civil society to enhance existing oversight mechanisms—as well as fuel new ones. This Article concludes that trademarks can help correct longstanding information asymmetries between the watchers and the watched by empowering the public to watch back. In making this argument, the Article reveals the role of trademark law in furthering the public interest in ways that extend well beyond competition and economic interests.
Amanda Levendowski, “How Can We Learn About the AI Systems that Might Be Used to Surveil Us? The Federal Trademark Register Has Answers,” Guest Blogger for Ethics and Governance of AI Initiative (Oct. 11, 2018)