The explosion in new technologies being deployed into the nation’s justice, public safety, and homeland security agencies over the past decade has aroused legitimate and well-founded concerns and debate surrounding the use of technology for governmental purposes. Lawsuits and challenges by opponents of new capabilities such as body-worn cameras, license plate readers, facial recognition and the use of artificial intelligence in predicting crimes and in pre-trial risk assessment of offenders have impeded the rational application of these instruments across the criminal justice and law enforcement continuum.
The Issue is Data. While the concerns about the use of these technologies are often mistakenly focused on the technology itself, the issues are more accurately about the data that these new technologies generate. The concerns fundamentally revolve around the use of policies and practices associated with collecting, retaining, sharing, and using data that is accessed or generated from deployment of government technology, but also by government access to other forms of data, including commercial entities like cell phone service providers, Internet service providers, social media platforms, equipment manufacturers (like cell phone manufacturers), and digital information that citizens routinely share—knowingly and unknowingly—with industry and government as part of their daily activity.
A Fragmented and Compartmentalized Public Safety System: What Standards Apply?. America’s public safety system is by design fragmented and compartmentalized. While it provides a direct link to communities, this system does not encourage horizontal and vertical collaboration, let alone integration. The complexity of this compartmentalization has increased since September 11, 2001, as our legal, policy, cybersecurity, and operational contexts have evolved to support homeland and national security sharing of criminal intelligence and information. As a consequence, the human systems governing the safeguarding, access and use of constantly increasing information have not kept pace with the technology. There are existing legal and constitutional principles, rights, and doctrines that have provided historical context and principled foundation for assessing the legality of deploying and using various technologies and the data captured or generated. Legal authorities, no less than the U.S. Supreme Court, are presently struggling with applying established legal precedent to the vastly expanding capabilities of new and emerging technologies. The struggle includes defining new measures of “reasonable expectations of privacy” and clarifying how and whether the third-party doctrine requires retooling and understanding how the mosaic theory of the Fourth Amendment function in light of unprecedented capabilities of new and emerging technologies.
A Difference of Opinion on Data Policy. As a nation, we lack a consensus on the policies that would determine what data is collected, how it is safeguarded, retained and stored; who may access or discover it; and for what purposes it may be applied. Without a consensus on such a policy framework, the ability to detect, prevent, and respond to crimes; prevent harms, and to address threats to our national security is severely constrained. The lack of such a consensus is a major impediment to using contemporary technology to empower agencies to exchange information that fosters improved decision making. Policy frameworks must balance the needs of agencies and organizations engaged in keeping our country safe and preventing harms, with ethical considerations and the protection of individual privacy, civil rights, and civil liberties.
Policy Paralysis: Impact on Technological Advances. In the next decade, the rate of the introduction of new technology that may have the potential to improve justice and public safety operations will be even higher than it was in the last decade. The rapid deployment of the Internet of Things, facial recognition and of new discoveries in artificial intelligence and analytics will create policy challenges we have not yet faced but that will be overwhelming. It is critical that as a nation we develop a policy framework focused on data and information sharing that can govern and build leverage into the implementation of new technologies as they emerge. The alternative is increasing chaos, missteps, eroded legitimacy; wasted effort from reinventing policies, and perpetuated stove-pipes for each new technology.
We Must Build a Consistent Legislative Framework from the Congress to the City Council. The policy framework we seek must be built on but not constrained by the work of the past 50 years in seeking legislative guidance on the uses to which data derived from modern technologies may be applied and on the constraints to such usage while safeguarding the data itself and sustaining the principles of privacy, civil rights and civil liberties. The framework must be embodied in consistent federal, state and local legislation that establishes the norms meeting these objectives. Having developed such a framework, there must be a strong capability created to advocate for this legislation. Finally, there must be a capability created to educate, persuade and assist the practitioners affected in the implementation of the framework in their own environment.
With a consensuson the policies for using technology in justice and public safety, there would be much less controversy about the deployment of these tools, fewer lawsuits, and more support for rational use of the information coming from the introduction of new technologies. Support for information sharing under well-reasoned policies would enable the nation to better use the information that is obtained while still protecting privacy and civil liberties. There could develop a cultural change that promotes more informed decision-making at all levels of government and across all jurisdictions.
When this work is done, the nation’s first responders and government policy makers will no longer use phrases such as “failure to connect the dots” and “information fell through the cracks”. Further, these same decision makers will be able to make and evolve coordinated policy at a faster rate, and be better positioned to drive efficient, effective and policy-compliant implementation of new technology; rather than playing “clean-up” after the fact.