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Indiscriminate investigation: new technology should not make us all fair game

Date: 
4 October 2016

As of October 1st, it has become impossible for the public to see footage from North Carolina police body cameras as a result of new law HB 972. This should be of concern to anyone who cares about police accountability and the balance of power in the new digital surveillance era. Increasingly, we are seeing law enforcement use new technology to respond not only to unrest and crime but also to collect and monitor data about individuals who are not suspected of any criminal involvement, such as those who attend peaceful protests. The police are using this technology in a way that increases our transparency to them, but decreases their accountability to us. This is something that we have to challenge, to reset that balance of power between the police and the individual, which is increasingly off kilter.

When first introduced, new policing technologies are often touted as a way to increase effectiveness in targeting criminals, while maintaining public trust. However, investigating crimes is only half the picture. On the other side is the rapid rise in the listening to and monitoring of people who have done nothing wrong and are not suspected of committing any crimes, which is partially justified as serving the purpose ‘anticipating crimes.’

As the rapid uptake of expensive new technology by law enforcement gathers pace, from automated license plate recognition, which can track vehicles throughout cities and states, to police body worn cameras, we are at a juncture where there is a compelling need for a clear national legal framework and public debate on these techniques, because they give the police such immense new power to potentially track our every movement.

We need to be wary, however, of legal developments that fundamentally tip the balance of technology in favor of the police. The new North Carolina line, which takes effect on October 1, 2016, will do just that by preventing law enforcement from releasing video footage. Footage from camera phones, dashcams, and body worn cameras has proved vital to the public assessment of the actions of law enforcement. If the police are going to use body worn cameras, which can both enhance transparency but also raise privacy concerns, then at the very least that transparency function must be protected. The North Carolina law swings the pendulum too far toward an unwarranted invasion of privacy by eliminating any possibility of accountability.

New laws addressing surveillance technology should be increasing our ability to hold authorities to account for their conduct, not eliminating it. The history of disproportionate surveillance of minority communities, and in the US particularly against people of color, means that transparency is vital to ensure that new technology is not exacerbating existing prejudices and inequalities.

Those who choose to exercise their democratic right to freedom of expression and freedom of assembly, whether at a protest, public meeting, or even at a music festival are being put under surveillance on an unprecedented scale. The public should be entitled to expect that they will not, simply, as a result of peaceful attendance at a public demonstration be identified and recorded on a searchable database. Nor should they have their social media activities, such as tweets, collected if they, for example, use the hashtag #BlackLivesMatters. They should not be added to a surveillance database if they express concerns about police behavior at protests. And such activities should not lead to location tracking via social media, security cameras, and facial recognition technology.

Social media channels, in particular, are a relatively new playground for state surveillance but also change the dynamics of policing itself. Law enforcement can conduct automated continuous monitoring of day-to-day activity online with the aid of algorithms designed to capture words and phrases; and this data can be combined with data from other forms of surveillance. The combination of such powerful surveillance technology, mixed with minimal public debate and lack of protections for people exercising constitutionally protected activities, is toxic and destructive to a healthy democracy.

In United States v Jones, a case considering monitoring of largely public movements by GPS technology, Supreme Court judge, Justice Sotomayor, explained in her concurring opinion that this kind of police monitoring “…may alter the relationship between citizen and government in a way that is inimical to democratic society.” If we want a real democracy, it is time to rein in the excessive power that new technology is giving our police forces, especially when they are not just being used to keep us safe, but to monitor and crush democratic dissent.