Local Police Surveillance and the Administrative Fourth Amendment

82 Pages Posted: 9 Dec 2018 Last revised: 31 Aug 2020

See all articles by Mailyn Fidler

Mailyn Fidler

Harvard University - Berkman Klein Center for Internet & Society

Date Written: March 2, 2020

Abstract

Police surveillance has become a problem of governance, not a problem of procedure. The introduction and use of sophisticated surveillance technologies, once reserved for elite central governments, in local policing has raised questions about the sufficiency of existing approaches. Judicial oversight—applying standard Fourth Amendment inquiries—falls short, limited to the facts of and parties to the case, rather than systems of surveillance, and with judges often unaware of or unable to access key technical details of the case. Other alternatives, including legislative guidelines for police technology and local police rulemaking, are lacking in other ways. This Article argues that the proper response to use of sophisticated investigative technologies by local police is local administrative governance by city councils or local administrative agencies. Having an external administrative body make rules about police technology brings with it an ability to consider expanded concerns about technology, timeliness, and an ability to regulate interactions with private actors. There are reasons to be worried about this proposal, too. But, drawing on the nascent literature about local administrative governance, this proposal is most likely to be responsive, accountable, and effective in the local context. In addition to offering a set of legal arguments, this paper contains two novel descriptive contributions. First, where other papers have focused on the legal risks of certain technologies, this paper compiles a comprehensive look at a range of police technologies and systematically analyzes the risks they pose both legally and at the local level. Second, this paper offers the first comprehensive assessment of the current efforts that localities have made towards implementing this kind of local administrative governance for police technology.

Keywords: Fourth Amendment, Law Enforcement, Federalism

Suggested Citation

Fidler, Mailyn, Local Police Surveillance and the Administrative Fourth Amendment (March 2, 2020). Santa Clara Computer and High Technology Law Journal, 2020, Available at SSRN: https://ssrn.com/abstract=3201113 or http://dx.doi.org/10.2139/ssrn.3201113

Mailyn Fidler (Contact Author)

Harvard University - Berkman Klein Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA 02138
United States

HOME PAGE: http://https://cyber.harvard.edu/people/mfidler

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