How to Stop Cops from Abusing Technology

Wednesday Apr 4th 2012 by Mike Elgan
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Law enforcement officials use surveillance technologies that citizens are prohibited from using -- a situation that raises serious questions.

Does new technology make us more free or less free?

It’s easy to say “both,” and point to examples on either side. And in fact, some uses of technology support the cause of individual liberty and others work against it.

I believe the biggest threat to our freedom in the long term is when governments or law enforcement agencies grab the exclusive right for themselves to use new technologies.

Here’s how it works. A new technology appears. Police say they can use it but citizens can’t. If this is accepted by the courts and the public, the government now has more power and citizens less.

Over time, the accumulation of these new powers upsets the balance of power between the state and the people, and our freedom is increasingly eroded.

One old example is the use of audio and video recording technology during police interrogations.

A century ago, no such recordings were made. Police interviewed suspects and witnesses. In court, it was the detective’s word against the suspect’s. But new tape recording and later video recording technology enabled a successful power grab by the police.

Police can record interrogations. Suspects cannot. As a result, both honest and abusive police have a technology advantage, and both innocent and guilty suspects have a disadvantage that didn’t used to exist before the technology existed.

Police can present any subset of an interrogation they like, or claim that it wasn’t recorded if the recording doesn’t support their case. The suspect has no such advantage, and is denied the opportunity to gather evidence of police misconduct.

There are much newer examples.

Local police spy and track via cell phone

A groundbreaking story in The New York Times this weekend revealed that hundreds of local police departments in the United States routinely spy on citizens via their cell phones, and track their locations, “with little or no court oversight.”

The article points out that cell phone carriers have set up profitable menus of services to offer to these departments, such as suspects’ locations, the tracing of texts and phone calls and others.

Any citizen requesting similar information would be denied.

It’s a new technology capability, and police are asserting a monopoly on its use. Even more disturbing is that this de facto monopoly on the use of these technologies is being granted not by congress or the courts, but by corporations.

We can also see new technology power grabs coming soon.

The drone wars

The widespread police use of remote-controlled drone aircraft predicted by just about everybody will raise some interesting legal questions. For example, can police use drones to peek into people’s backyards, or does that violate the Constitution’s 4th-Amendment protection against “unreasonable searches and seizures”?

One possibility is that, as with many technologies in the past, law enforcement agencies will be granted the exclusive right to use drone technology along with an exception to (or a new definition of) the 4th Amendment.

Another possibility was raised recently by John Villasenor, a senior fellow at the Brookings Institution in an NPR interview. He points out that a 2001 case established that when “the government uses a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search.”

In that case, if drones grow in popularity among consumers to the point where they can be found to be “in general public use” then drone spying on backyards would not be “searches,” and would thereby not be banned by the Constitution.

In either of the cases, the police would retain exclusive use of the information gathered by drones, as well as the knowledge of exact details of the surveillance.

Are we going to accept this?

The bigger question is this: What should a free society do in order to safeguard its freedom as new technologies come online?

Unfortunately, the Constitution doesn’t mention video cameras, cell phones or drones. But it clearly attempts to prevent government exclusivity over and use and control of, say, media technology or gun technology.

Similarly, we need to work hard to prevent such exclusivity over new technologies not imagined by the framers of the Constitution.

For example, I believe suspects should have the right to record police interrogations if the police have that right. Why not?

I believe information about what data was gathered by police from the cell phone company should be available to the targets upon request.

And I believe information about what is being “droned” should be publicly available.

There are plenty of examples where exclusivity has been denied to authorities, and the need for public safety has been balanced successfully against the public’s right to know. For example, live police radio chatter is available to the public using radios, the Internet or even mobile apps. Police are not allowed exclusive use of the airwaves.

We should also be aware that law enforcement agencies will always try to give themselves exclusive use over every useful new technology. The public needs only to do nothing in order to slouch toward a police state.

Note that this phenomenon does not require any malicious intent on the part of the authorities. Police genuinely do and should want to use all tools at their disposal to catch crooks and terrorists.

But as a society, we need a principle of application that whenever government authorities are given permission to use a technology, the public must be given the ability to use that same technology in the other direction -- or at least have access to or knowledge of what information has been gathered.

We must resist the provably incorrect assumption that all authorities are innocent and all suspects are guilty. Instead, permission to use any new technology must be based upon reality, in which authorities are capable of abuses and citizens can be wrongly accused.

The best way to approach future technologies as they come on line is to cautiously grant permission for governments and police agencies to use them -- but only if citizens can use them, too.

 

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