Archivists as Amici Curiae

Activating Critical Archival Theory to Confront Racialized Surveillance

Abstract

Archivists are uniquely situated to problematize the use and misuse of records in a legal context. But along with the ability to think critically about how records are discussed and employed, archivists have a responsibility to act when records are being used as tools of oppression. This paper serves a dual purpose. First, it contributes to the field of Critical Archival Studies with original analysis and theory around records in legal discourse. It rethinks the 2018 US Supreme Court case Carpenter v. United States through critical examination of four archival frameworks: co-creation and third-party doctrine; the use of documents to control the movements of certain bodies; privacy in record-keeping; and the assumed neutrality of information infrastructure.

Second, it moves beyond specific analysis of the particular case, which has already been decided, to provide other archivists with a conceptual and practical roadmap to problematize the status quo usage of records in a legal context. Archivists’ increasingly nuanced conceptions of records and documentation are not cited as technical background or evidence in Supreme Court cases. Active introduction and application of these new theories to the legal field would disrupt broader societal conceptions of records in daily life, expose racism in legal invocations of records and record-keeping, and ultimately serve an emancipatory function. The paper ends with an appeal to archivists to intervene in the dominant narrative around records in legal discourse.