Surveillance Policy Making by Procurement
91 Washington Law Review 1595 (2016)
68 Pages Posted: 25 Feb 2016 Last revised: 28 Dec 2016
Date Written: August 15, 2016
In Seattle, the police obtained a surveillance drone with the approval of a city council that did not realize what it was doing. In Oakland, following a council review that lasted literally two minutes, the city created a data integration center that networked together all of its existing surveillance infrastructure. In San Diego, elected representatives were only dimly aware that the law enforcement agency they supervised had built and deployed innovative facial recognition technology.
In an age of heightened concern about the militarization of local police and surveillance technology, how do local law enforcement agencies obtain cutting edge and potentially intrusive surveillance equipment without elected leaders and the general public realizing it? The answer lies in the process of federal procurement, through which the federal government, often in the name of combatting terrorism, funnels billions of dollars to local law enforcement agencies that can then be used to purchase surveillance equipment. But the federal government does not take steps to ensure that local elected representatives and members of the public are involved in decisions about what technologies to acquire, or that anyone develops a protocol to constrain how the technologies are used. Surveillance policy making by procurement thus raises a host of questions about accountability for policy choices when the federal government influences local policing through grants, but does not address all relevant concerns and how to deal with the inevitable spillover effects of the federal government’s national security initiatives on the ways local law enforcement agents carry out their more routine policing functions.
This Article is the first to comprehensively consider the intersection of procurement and local surveillance policy making. Using case studies from Seattle, Oakland, and San Diego, it exposes the practice of surveillance policy making by procurement. The case studies highlight the structural and institutional factors that lead to surveillance policy making by procurement, and elected representatives’ responses to it point the way towards policy solutions that would bring a greater measure of transparency and accountability to local surveillance policy making. The case studies also provide fodder for thinking through the way federal spending programs can generate confusion over who is responsible for policy choices and how the federal government’s national security policies have spillover effects on the conduct of routine policing.
Local communities vary greatly in their crime rates, the competence and trustworthiness of their police departments, and their political convictions. This Article draws on the case studies to suggest that local governments have a valuable role to play in tailoring surveillance policy to local conditions. It concludes by proposing politically feasible steps to strengthen local democratic input regarding what surveillance technology should be adopted and the conditions under which it should be deployed.
Keywords: surveillance, procurement, Fourth Amendment
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By David Pozen