Privacy or protection? Is there a need for regulation of police technology?

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

The protests were described as the Baltimore Uprising.

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

The city would later learn that the Baltimore Police Department was using powerful cameras that could capture detailed images of the city below. This was part of the evolution of the city’s CitiWatch program, originally announced in 2005.

Before Gray, residents joined the program, as Baltimore was the seventh most violent city in 2003, before the program appeared. After Gray, residents were worried about violating their right to privacy, as the “strange flight orbit” extension of the program was unknown to residents before it was implemented.

In response to the dilemma between privacy and protection, attorneys for the Policing Project, a nonprofit center at New York University School of Law, have launched a project to explore an alternative to soft law: a police technology certification system. The project examines untested technologies. Instead, they propose that the police become more transparent, fair and democratically accountable.

The certification schemes that lawyers are calling for will require police technology to meet a certain standard before use.

“A certification scheme can review the effectiveness of technology and ethically assess its impact on civil rights, civil liberties and racial justice,” lawyers wrote in a study on Berkley Technology Law Journal.

The report says Baltimore’s CitiWatch programs may be approved as a traditional video surveillance device, but not as an aerial surveillance system, meaning the certification program could affect how police use the products.

The authors say the program will have to work independently, acknowledging that some certification programs do not work democratically.

They argue for established rules – which do not currently exist – and say that due to the lack of regulation – the technology has become innovative in its obsession with citizens’ rights.

For example, an important 2016 report on the use of face recognition technology by law enforcement estimates that one in four agencies has access to this tool, with more than 117 million American adults already in face recognition databases.

In addition, in 2012, 71% of police departments used automated license plate readers, which led to the scanning of hundreds of millions of license plates. A California state auditor’s report for 2020 revealed that the Los Angeles Police Department stored more than 320 million scanned license plates – 99.9 percent of which were stored despite no generate a hotlist match.

Automated license plate readers and face recognition technologies are disproportionately targeted at minority communities and people of color, whom they claim can sometimes violate privacy.

“The Fourth Amendment – implemented by judges – is the main constitutional restriction on police power, but according to existing doctrine, remarkably few emerging police technologies fall within its scope,” they wrote.

However, some protections are offered against technologies that are currently legal. Such as the Privacy Act of 1974 and the e-Government Act of 2002, but some scholars say it does not sufficiently regulate policing.

The authors of the study suggest that the community and the police be involved in the certification process and argue with proper compliance and regulation, technology can benefit the police without violating the rights of citizens.

They say the programs will not make a difficult choice. Instead, they will enable communities and politicians to make their own decisions.

“The hope is that certification can, instead of displacing community choice, facilitate it, while demonstrating a trusted voice of information in decision-making,” they wrote.

The authors of the report are Barry Friedman, New York University School of Law; Farhang Heydari, Police Project, New York School of Law; Max Isaacs, New York University School of Law; and Katie Kinsey, New law.

The study can be downloaded here.

James Van Brammer is an associate editor of The Crime Report.

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