Privacy vs Protection: Does Policing Technology Need Regulation?

In 2015, the death of a 25-year-old Black man, Freddie Gray, while transported in a police van sparked protests in Baltimore.

The protests were deemed “The Baltimore Uprising.”

Soon after, police enthusiasts noticed “strange flight orbits” towering over the city of Baltimore. However, what they saw was something completely different.

The city would learn later that the Baltimore Police Department was using powerful cameras that could capture detailed imagery of the city below it. It was part of an evolution of the city’s “CitiWatch program,” initially announced in 2005.

Before Gray, the residents bought into the program, as Baltimore was the seventh most violent city in 2003 before the program came about. After Gray, residents worried about violations of their right to privacy, as the “strange flight orbit” extension to the program was unknown to residents before its implementation.

Responding to the conundrum between privacy and protection, lawyers at the Policing Project, a non-profit center at New York University School of Law — began a project to explore a “soft law” alternative: a certification system for policing technologies. The project considers the unchecked technologies concerning. Instead, they propose making policing more transparent, equitable and democratically accountable.

The certification schemes the lawyers call for would require policing technologies to meet a particular standard before usage.

“A certification scheme could perform a review of a technology’s efficacy and an ethical evaluation of its impact on civil rights, civil liberties and racial justice,” the lawyers wrote in a study for the Berkley Technology Law Journal.

The report says that Baltimore’s CitiWatch programs could perhaps achieve approval as a traditional CCTV device but not as an aerial surveillance system, meaning the certification program could impact how the police use the products.

The writers say the program would have to work independently, acknowledging how some certification programs do not work democratically.

They argue for set rules – which currently do not exist – and say because of the lack of regulation – the technology has become innovative in its intrusiveness over the rights of citizens.

For example, a 2016 landmark report on law enforcement’s use of facial recognition technology estimated that one in four agencies have access to this tool, with over 117 million American adults already in face recognition databases.

Additionally, in 2012, 71 percent of police departments were using automated license plate readers, resulting in scans of hundreds of millions of license plates. A 2020 California state auditor report revealed that the Los Angeles Police Department had stored more than 320 million license plate scans — 99.9 percent of which were stored despite not generating a hot list match.

Automated license plate readers and facial recognition technologies have disproportionately targeted minority communities, and people of color, which they argue can sometimes infringe upon the right to privacy.

“The Fourth Amendment — implemented by judges — is the primary constitutional restraint on police power, but under existing doctrine, remarkably few of the emerging police technologies fall within its ambit,” they write.

However, some protections are offered against the technologies currently in law. Such as the Privacy Act of 1974 and the E-Government Act of 2002, but some scholars say it does not regulate policing enough.

The writers of the study suggest community and police buy into the certification process and argue with proper compliance and regulation, the technologies can benefit the police without infringing upon the rights of citizens.

They argue the programs will not make the hard choices. Instead, they will give the communities and policymakers room to make the decisions themselves.

“The hope is that certification might, rather than displacing community choice, facilitate it, while proving a trusted informational voice in decision making,” they write.

The authors of the report were Barry Friedman, New York University School of Law; Farhang Heydari, Policing Project, NYU School of Law; Max Isaacs, New York University School of Law; and Katie Kinsey, NYU Law.

The study can be downloaded here.

James Van Bramer is Associate Editor of The Crime Report.