Policing Police Tech: A Soft Law Solution

57 Pages Posted: 14 May 2022

See all articles by Barry Friedman

Barry Friedman

New York University School of Law

Farhang Heydari

Policing Project, NYU School of Law

Max Isaacs

New York University School of Law

Katie Kinsey

NYU Law

Date Written: June 1, 2022

Abstract

Policing agencies are undergoing a rapid technological revolution. New products—with almost unfathomable capacities to collect, store, monitor, and transmit data about us—constantly are coming to market. In the hands of policing agencies, some of these products may promise real benefits to society. But too often these public safety benefits are unproven. And many of these products present real harms, including risks to privacy, freedom of speech, racial justice, and much more. Part of “public safety” is being safe from these harms as well.

Despite these risks, new policing tech products continue to be adopted and deployed without sufficient (or any) regulatory guardrails or democratic oversight. Legislative bodies are reluctant to adopt traditional “hard law” regulation. And because there is no regulation, what we are left with is a “race to the bottom” in which policing technology vendors develop increasingly intrusive products with minimal or no safeguards.

This Report explores a “soft law” approach to dealing with the race to the bottom around policing technologies: an independent body charged with certifying policing technologies before they are deployed. It examines the viability of an independent body—governmental or not-for-profit—that would perform both an efficacy review and an ethical evaluation of vendors’ products, assessing them along privacy, racial justice, and civil rights and liberties dimensions, among others. It explains how, in theory, certification can overcome some of the obstacles facing hard law regulation. It then discusses the practical design considerations that a policing tech certification system would have to navigate. It also surveys the challenges posed in the implementation of a certification regime, including how to ensure the body is legitimate and obtains stakeholder buy-in, and whether certification would encourage or undercut hard law regulation. Ultimately, the Report concludes that although adopting a certification scheme presents challenges, the idea has enough merit to receive serious consideration as part of a unified system of getting policing technologies in check.

Suggested Citation

Friedman, Barry and Heydari, Farhang and Isaacs, Max and Kinsey, Katie, Policing Police Tech: A Soft Law Solution (June 1, 2022). Berkeley Technology Law Journal, Vol. 37, 2022, Available at SSRN: https://ssrn.com/abstract=4095484

Barry Friedman

New York University School of Law ( email )

40 Washington Square South
Room 317
New York, NY 10012-1099
United States
212-998-6293 (Phone)
212-995-4030 (Fax)

Farhang Heydari (Contact Author)

Policing Project, NYU School of Law

110 West 3rd Street
Mezzanine
New York, NY 10065
United States

Max Isaacs

New York University School of Law ( email )

Katie Kinsey

NYU Law

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