Secrecy & Evasion in Police Surveillance Technology
61 Pages Posted: 4 Nov 2018 Last revised: 27 Nov 2018
Date Written: October 12, 2018
New technologies are transforming the capabilities of police. Law enforcement agencies now have devices to track our cellphones and software to hack our networks. They have tools to sift the vast quantities of digital silt we leave behind on the internet. They can deploy “big data” algorithms meant to predict where crimes will occur and who will commit them. They have even transformed the humble closed-circuit video camera—and its more recent companion, the body camera—into biometric tracking devices equipped with artificial intelligence meant to pick faces out of a crowd and, eventually, to mine gigabytes of stored footage to automatically reconstruct the comings and goings of anyone they choose to target.
These kinds of innovations in police tech raise profound questions about privacy, personal freedom, the powers of police, and their potential for abuse. They often test the constitutional limits on surveillance. Yet the government shrouds many of them in secrecy. Even while these technologies threaten to transform the relationship between people and the police, the public is often in the dark about the how police use them and the rules, if any, that govern them. What could justify this secrecy?
This Article examines the primary argument offered by law enforcement: that disclosure of police technologies and methods would allow criminals to circumvent the law. Without secrecy, the argument goes, criminals could evade law enforcement’s tools, crime would go undetected, and society would suffer the consequences. I call this the anti-circumvention argument for secret technology. This Article is the first to examine it.
The Article argues that the anti-circumvention argument, as currently implemented in law and practice, is producing far more secrecy than it can possibly justify, and that it is doing so at the expense of democratic deliberation and external checks on police. The Article illustrates how the government has used the anti-circumvention argument to resist public disclosure and shows that this secrecy comes at a significant cost, undermining democratic governance, public accountability, and perhaps law enforcement itself.
The Article also offers the first systematic look at the anti-circumvention argument, assessing its analytic structure and empirical premises, and comparing it to the legal doctrines that have codified it in the Freedom of Information Act and a common law evidentiary privilege. I conclude that these laws protect far more secrecy than the anti-circumvention argument can justify. The Article proposes reforms to shrink these barriers to disclosure and to require police to affirmatively publish basic information for public notice and comment, in order to allow meaningful democratic checks as we enter the age of digital policing.
Keywords: secrecy, surveillance, technology, anti-circumvention, anti-evasion, law enforcement, police, FOIA, law enforcement privilege
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