Police Surveillance and Racial Justice

Despite laws aimed at providing greater oversight over the use of police surveillance technologies, communities of color are still at risk from them, according to a forthcoming study in the UCLA Law Review.

Police Surveillance and Racial Justice

Laws aimed at providing community oversight over police surveillance technology still raise concerns about privacy and racial bias, according to a forthcoming study in the UCLA Law Review

So-called  Community Control Over Police Surveillance (CCOPS) laws, meant to empower community residents, have been introduced in more than 20 jurisdictions around the U.S.. But there is little evidence that privacy rights are respected, writes New York University law professor Vincent Southerland.

“There is a natural tension between laws like CCOPS, which risk legitimizing surveillance technologies in police hands, and efforts that look to an abolitionist horizon by seeking to relieve police of their surveillance tools,” Southerland writes.

Police departments are increasingly reliant on emerging technological tools that they believe will improve policing, even though there are mounting concerns about privacy, the study asserts.

According to the study, surveillance devices are particularly daunting, with communities of color disproportionately impacted.

While some argue that Fourth Amendment protections should disavow some of these practices, the courts have narrowed these protections over the past four decades, particularly in defining  “government intrusions,” the study shows.

For instance, the 1968 Wiretap Act,  introduced as part of the Omnibus Crime Control and Safe Streets Act of 1968, significantly curbed the use of wiretapping. It required warrants and evidence that other methods were unachievable or too dangerous, among other limitations.

But in the decades since, wiretap usage increased significantly, the report says.

In 2016, advocates with these concerns launched a campaign to impose regulations on law enforcement surveillance tools. The restrictions set an aim of creating community control over the technologies.

The campaign resulted in the series of CCOPS laws, which rely on community engagement to  serve as a check on the intrusiveness of the devices. In addition, the rules refocus power to the City Councils or their local equivalents by overseeing law enforcement acquisition and deployment of surveillance technologies.

“While CCOPS laws and their community control mechanisms are far from ideal, they should be considered among the suite of tools that advocates can use to end the raced, classed, violent status quo that characterizes the deployment of police surveillance technologies in particular and the criminal legal system in general,” the report says.

The study quotes Brooklyn Law School Prof. Jocelyn Simonson as identifying community control over policing — including the technological tools available to the police — as justified on three grounds: reparation, anti-subordination, and as necessary “contestatory democracy.”

In other words, shifting the power to those at risk of being abused could mitigate the wrongful use of surveillance evidence.

In one instance, policies set specific parameters for using technologies – without removing its usage in full. According to the report, when there was no consensus on the use of the devices, the matter would be referred to an ad hoc committee for further discussion and review.

During a February 2020 meeting of an Oakland community group, one member praised the use of oversight for creating creates a level of restraint in the local police department that inherently protects people’s civil liberties.”

“But limiting or banning police surveillance technologies on a case-by-case and tool-by-tool basis is akin to a game of whack-a-mole,” the report says. “It amounts to a set of retail, rather than wholesale interventions.”

That said, the study reveals how surveillance continues to work as a discriminatory practice.

In April 2019, Seattle’s Working Group –another jurisdiction of CCOPS, raised concerns to the City Council about using automated license readers (ALPRs), which the Working Group argued: “chills constitutional protected activities.”

The ALPR systems collected 37,000 license plates in 24 hours — equating to 13.5 million scans over an entire year, the study says.

The Seattle Working Group detailed instances of abusive use of ALPRs by police to surveil Muslim communities in New York and the United Kingdom, and the disproportionate placement of ALPRs in low-income communities of color in Oakland, according to the report.

For their part, the police pointed to six undated instances in Seattle when arrests were made in serious crimes as examples of the benefits of ALPRs. None of those examples offered details on whether the suspect arrested was convicted of the crime charged.

“We should deploy the law as a ratchet to move us closer to a world without technological tools of racial control,” the study argues.

Vincent Southerland is Assistant Professor of Clinical Law and Co-Faculty Director, Center on Race, Inequality, and the Law at New York University School of Law.

The full report, entitled The Master’s Tools and a Mission: Using Community Control and Oversight Laws to Resist and Abolish Police Surveillance Technologies, can be downloaded here 

James Van Bramer is Associate Editor of The Crime Report