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High-Tech Policing

April 21, 2017 • Volume 27, Issue 15
Are new surveillance technologies effective and legal?
By Barbara Mantel

Background

Professional Policing

Before the mid-19th century, full-time police forces did not exist in the United States. The agrarian South had armed slave patrols, which hunted escaped slaves and enforced slave codes; the Northeast relied on night-watch patrols, which rounded up drunks and focused on petty crime; and frontier areas used vigilantes and private police-for-hire.39

But as the country urbanized, cities began organizing formal police departments. New York City was the first, establishing its department in 1845 with 800 officers. Boston and Philadelphia soon followed.

These early departments quickly became bastions of patronage, however. “The only qualification for becoming a cop was a political connection,” wrote journalist Radley Balko in Rise of The Warrior Cop: The Militarization of America's Police Forces. “Training was nonexistent, beatings were common, and … the system had little effect on crime.”40

During the first three decades of the 20th century, reformers worked to professionalize policing and distance it from political meddling. August Vollmer, police chief in Berkeley, was the nation's pre-eminent reformer, introducing forensic science in 1907, creating the Berkeley Police School in 1908, helping to establish the School of Criminology at the University of California, Berkeley, in 1916, and using the newly invented lie detector in 1920.41

Police departments across the country adopted entry requirements and personnel standards, and crime specialists began using technology — photography and fingerprinting — to investigate crimes and track suspects.42

Some police officials and politicians wanted to fingerprint everyone. In a 1936 campaign in Berkeley, Calif., the police chief and local businesses set up fingerprinting stations in public buildings, in shops and on street corners, and merchants offered discounts to citizens if they produced a police-issued “I have been fingerprinted” card, wrote sociologist Christian Parenti in The Soft Cage: Surveillance in America From Slavery to the War on Terror. The police had a clear goal: Fingerprinting enabled “us to follow the movement and activities of Communists, Anarchists and Radicals,” according to a contemporary account.43

Law-and-Order Campaigns

Professionalizing police departments “wasn't easy,” wrote New York University law professor Barry Friedman in Unwarranted: Policing Without Permission. Many departments were corrupt, and vigilante justice, especially against African-Americans during the Jim Crow era, continued to pervade the rural South and West.44

“The facade of professional policing crumbled entirely during the turbulent 1960s,” wrote Friedman. Violent crime more than tripled, from 288,000 in 1960 to 1,040,000 in 1975. Riots also engulfed the nation's inner cities over a five-year span in the 1960s. Angry over, among other things, racial prejudice, poverty and the assassination of Martin Luther King Jr., rioters looted stores and burned city blocks. A presidential commission in 1967 blamed the riots, in part, on deep hostility between police and impoverished inner-city communities.45

Massive protests against the Vietnam War, meanwhile, swept across the nation. Police in Chicago and other cities reacted harshly to the riots and protests, further raising tensions. But the takeaway for numerous “law and order” conservative politicians, including Richard M. Nixon in the 1968 presidential campaign, was a demand for police and courts to crack down on gangs, protesters and drug usage.

The 1970s saw New York and other states pass stringent anti-drug laws and tougher, mandatory sentencing rules for repeat offenders.46

But by the late 1980s, progressive reformers and some police chiefs were embracing the notion of community policing: getting police officers out of their squad cars and walking neighborhood beats, where they would get to know residents, rebuild trust and devise creative solutions to improve public safety. Today, it is a “key component of policing efforts in most mid- and large-sized law enforcement agencies across the United States,” according to an Urban Institute report.47

Some law enforcement officials, however, complained that community policing was a vague hodgepodge of policies that asked too much of beat cops, turning them into social workers who were expected to help residents with their problems.

Others said community policing and its emphasis on deterrence had a dark side: encouraging police officers to engage in discriminatory practices, such as New York City's stop-question-and-frisk policy.48 The tactic involved temporarily detaining, questioning and sometimes searching individuals on suspicion of carrying weapons or contraband.

A related strategy — the “broken windows” theory of policing — required officers to show zero tolerance toward minor crimes such as vandalism and public drinking. Defenders of stop-and-frisk and broken-windows strategies said it made New York City safer in the 1990s and early 2000s by creating an atmosphere of order, preventing more serious crimes. But a judge in federal District Court in Manhattan ruled in 2013 that New York's stop-and-frisk violated minorities' constitutional rights.49

Despite the criticisms, law enforcement agencies were looking for new, cost-effective tools to enhance community policing efforts, according to the Urban Institute. One such tool was closed-circuit television.50

Although businesses began using closed-circuit cameras for security in the 1970s — and in 1973 the New York Police Department installed cameras in Times Square as a crime-fighting tool — law enforcement agencies didn't begin to deploy them widely in public spaces until the 1990s. A 2001 RAND survey found that 41 percent of local police departments and 66 percent of state police departments used “fixed-site video surveillance cameras.” In 2002, the District of Columbia started building “a centrally monitored, citywide closed-circuit television surveillance system — the first of its kind in the nation,” according to Parenti.51

Today, closed-circuit television “has become a ubiquitous tool of policing,” according to a report from Data & Society, a think tank in New York City. That's despite studies showing that closed-circuit television may merely displace crime to other areas; has likely had a negligible effect on violent crime; and can even increase petty theft, since cameras give potential victims a false sense of security so they guard their belongings less diligently.52

Body cameras began their ascent in 2013, when police in Rialto, Calif., reportedly became the first to outfit all its officers with the cameras.53 Before taking that step, the department completed a yearlong study in which it randomly assigned the cameras to some of its police shifts. The results were dramatic: “Shifts without cameras experienced twice as many incidents of use of force as shifts with cameras,” the researchers reported.54

A demonstrator is arrested during a protest (Getty Images/Scott Olson)  
A demonstrator is arrested during a protest in Ferguson, Mo., on Aug. 10, 2015, marking the one-year anniversary of the controversial shooting of Michael Brown, an unarmed black teenager, by a white police officer. Brown's death in Ferguson ignited street protests around the country and calls by citizens and civil liberties groups for police departments to adopt body cameras to record officers' encounters with the public. (Getty Images/Scott Olson)

The small study — the department had only 54 frontline officers at the time — generated tremendous attention from police departments interested in reducing police use of force and citizen complaints. In a 2013 survey of 254 police departments, more than three-quarters reported that they were not using body cameras as of July that year.55

Public interest in the technology exploded in 2014, after Darren Wilson, a white police officer in Ferguson, Mo., shot to death an unarmed black teenager, Michael Brown. Wilson suspected Brown of shoplifting at a convenience store and stopped him as he walked on a nearby street. Wilson said Brown charged him after a short chase, and he opened fire in what he said was self-defense. Some witness accounts supported Wilson's version of events, but others said Brown had his hands raised in surrender.56

When a grand jury declined to indict Wilson, Brown's family issued a statement: “Join with us in our campaign, to ensure that every police officer working the streets in this country wears a body camera.”57

In a 2015 survey of 70 major police and sheriff's departments, 97 percent “indicated that they were moving forward with body camera systems.”58

Legal Protections

In the past decade, city police and county sheriff departments have adopted a wide range of powerful technologies, from license-plate readers to aerial drones to cell-site simulators. And the spread of these high-tech tools has raised an important question about whether using them would require a warrant under the Fourth Amendment.

The Fourth Amendment to the U.S. Constitution reads in part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.”59 The amendment has been interpreted as specifically protecting citizens from unwarranted searches by government agents. It does not guarantee a right to privacy in general — such as protection from corporations spying on one's online purchasing activity.

If something is a “search” within the meaning of the amendment, law enforcement can do it, “so long as they have probable cause and a warrant,” wrote New York University's Friedman. “But if it is not a ‘search’ within the meaning of the Fourth Amendment, there are no limits on what the government can do. To any of us.”60

The Supreme Court has been grappling for decades with what constitutes a search. In 1967, the FBI wiretapped a public phone booth to try to catch Charles Katz of Los Angeles, suspected of placing illegal sports bets from the phone. The agent did not get a warrant for the wiretap, reasoning that it was not a search because any member of the public walking by the booth, even with the door closed, might overhear Katz. But in Katz v. United States, the Supreme Court disagreed, ruling that the Fourth Amendment protects people, not places.61

Marchers in Los Angeles' Skid Row area protest police brutality (Getty Images/David McNew)  
Marchers in Los Angeles' Skid Row area protest police brutality on Oct. 22, 2015, joining other demonstrators in New York City and some 30 other cities. A placard calls for the release of police body camera footage taken during the police shooting death of an unarmed, homeless Cameroonian immigrant, Charly Leundeu Keunang. Los Angeles County's district attorney found that the three officers involved reasonably believed Keunang posed a lethal threat during attempts to arrest him. (Getty Images/David McNew)

The decision established what became known as the “Katz test.” Whether something is a search or not “depends on whether the government invaded a person's ‘reasonable expectation of privacy,’” according to Friedman. At the same time, the court said that “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”

But place still mattered. In the early 1980s, the Supreme Court ruled that the police were within their rights to attach a beeper — a radio transmitter that acts as a tracking device — to a suspect's car without a warrant, but then ruled a year later that placing a beeper inside a home was a search and required a warrant.62

Today's modern technology has advanced far beyond beepers and is “effectively erasing the distinction so critical to Katz: between what we knowingly expose to the public and what we seek to keep private,” said Friedman. And this presents a challenge to the courts.63

In 2001, the Supreme Court ruled in Kyllo v. United States that police must get a search warrant before deploying any kind of “sense-enhancing technology” to obtain information from inside a home. Without a warrant, the police had used a thermal heat detector to measure infrared radiation emitted from a roof, indicating the use of grow lamps inside to cultivate marijuana plants. However, the court said its ban on the warrantless use of such technology holds only as long as “the technology is not in the general use.”64

“Given the current pace of technology, soon everything law enforcement possesses might be ‘in general use,’” wrote Friedman. For example, many hobbyists fly drones. “Does that mean the government is now free to hover them outside our windows and over our backyards?” he asked.65

No court has yet ruled on law enforcement's use of drones, said the Brennan Center's Levinson-Waldman. And court rulings on other examples of the latest technology are infrequent. For example, no court has ruled on law enforcement's use of body cameras inside a home.

While the Supreme Court has ruled that drivers cannot expect their license-plate numbers to be private, no case to date has challenged the creation of license-plate databases of presumptively innocent people. At least two courts, however, have said that police need a warrant to use a Stingray device. “Absent a search warrant, the government may not turn a citizen's cellphone into a tracking device,” said a federal judge.66

Meanwhile, municipalities began taking the matter into their own hands earlier in the decade. After the Seattle police department's controversial acquisition of a drone, the city became the first municipality to adopt an ordinance requiring some kind of oversight before the police or any city department purchases surveillance equipment. The 2013 ordinance requires the Seattle City Council to assess “the technology's impact on privacy and anonymity and propose steps to be taken to mitigate those impacts,” wrote the University of California's Joh.67

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[39] Radley Balko, Rise of the Warrior Cop: The Militarization of America's Police Forces (2013), pp. 28–29.

Footnote:
39. Radley Balko, Rise of the Warrior Cop: The Militarization of America's Police Forces (2013), pp. 28–29.

[40] Ibid., pp. 30–31.

Footnote:
40. Ibid., pp. 30–31.

[41] Charles Bennett, “Legendary Lawman August Vollmer,” officer.com, May 27, 2010, http://tinyurl.com/mj2k2pl.

Footnote:
41. Charles Bennett, “Legendary Lawman August Vollmer,” officer.com, May 27, 2010, http://tinyurl.com/mj2k2pl.

[42] Balko, op. cit., p. 32.

Footnote:
42. Balko, op. cit., p. 32.

[43] Christian Parenti, The Soft Cage: Surveillance in America From Slavery to The War on Terror (2003), pp. 58–59.

Footnote:
43. Christian Parenti, The Soft Cage: Surveillance in America From Slavery to The War on Terror (2003), pp. 58–59.

[44] Barry Friedman, Unwarranted: Policing Without Permission (2017), p. 39.

Footnote:
44. Barry Friedman, Unwarranted: Policing Without Permission (2017), p. 39.

[45] Ibid., p. 40. Crime statistics are from FBI Uniform Crime Reports, Table Ec1-10 — Estimated crimes known to police, by type of offense: 1960–1997, in Susan Carter, ed., Historical Statistics of the United States Millennial Edition Online (2009), http://tinyurl.com/54vmz2.

Footnote:
45. Ibid., p. 40. Crime statistics are from FBI Uniform Crime Reports, Table Ec1-10 — Estimated crimes known to police, by type of offense: 1960–1997, in Susan Carter, ed., Historical Statistics of the United States Millennial Edition Online (2009), http://tinyurl.com/54vmz2.

[46] For more, see Sarah Glazer, “Sentencing Reform,” CQ Researcher, Jan. 10, 2014, pp. 25–48.

Footnote:
46. For more, see Sarah Glazer, “Sentencing Reform,” CQ Researcher, Jan. 10, 2014, pp. 25–48.

[47] Friedman, op. cit., p. 42; Nancy G. La Vigne et al., “Using Public Surveillance Systems for Crime Control and Prevention: A Practical Guide for Law Enforcement and Their Municipal Partners,” Urban Institute, Sept. 19, 2011, p. v, http://tinyurl.com/mzn7jf7.

Footnote:
47. Friedman, op. cit., p. 42; Nancy G. La Vigne et al., “Using Public Surveillance Systems for Crime Control and Prevention: A Practical Guide for Law Enforcement and Their Municipal Partners,” Urban Institute, Sept. 19, 2011, p. v, http://tinyurl.com/mzn7jf7.

[48] Friedman, op. cit., p. 44.

Footnote:
48. Friedman, op. cit., p. 44.

[49] “David Floyd, Lalit Clarkson, Deon Dennis, and David Ourlicht v. The City of New York,” U.S. District Court Southern District of New York, Aug. 12, 2013, p. 181, http://tinyurl.com/ks85b77.

Footnote:
49. “David Floyd, Lalit Clarkson, Deon Dennis, and David Ourlicht v. The City of New York,” U.S. District Court Southern District of New York, Aug. 12, 2013, p. 181, http://tinyurl.com/ks85b77.

[50] La Vigne, op. cit.

Footnote:
50. La Vigne, op. cit.

[51] Parenti, op. cit., pp. 116, 109.

Footnote:
51. Parenti, op. cit., pp. 116, 109.

[52] Alexandra Mateescu, Alex Rosenblat and Danah Boyd, “Police Body-Worn Cameras,” Data & Research Institute, February 2015, p. 4, http://tinyurl.com/l6wh77l.

Footnote:
52. Alexandra Mateescu, Alex Rosenblat and Danah Boyd, “Police Body-Worn Cameras,” Data & Research Institute, February 2015, p. 4, http://tinyurl.com/l6wh77l.

[53] Dina Demetrius, “Meet the first U.S. police department to deploy body cameras,” Al Jazeera America, Dec. 17, 2014, http://tinyurl.com/nrmchje.

Footnote:
53. Dina Demetrius, “Meet the first U.S. police department to deploy body cameras,” Al Jazeera America, Dec. 17, 2014, http://tinyurl.com/nrmchje.

[54] “Self-Awareness to Being Watched and Socially-Desirable Behavior: A Field Experiment on the Effect of Body-Worn Cameras on Police Use-of-Force,” Bureau of Justice Assistance, U.S. Department of Justice, pp. 4, 8, http://tinyurl.com/kyf2x72.

Footnote:
54. “Self-Awareness to Being Watched and Socially-Desirable Behavior: A Field Experiment on the Effect of Body-Worn Cameras on Police Use-of-Force,” Bureau of Justice Assistance, U.S. Department of Justice, pp. 4, 8, http://tinyurl.com/kyf2x72.

[55] “Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned,” Police Executive Research Forum and U.S. Department of Justice, 2014, p. 2, http://tinyurl.com/lxdg7ej.

Footnote:
55. “Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned,” Police Executive Research Forum and U.S. Department of Justice, 2014, p. 2, http://tinyurl.com/lxdg7ej.

[56] “What Happened in Ferguson?” The New York Times, Aug. 10, 2015, http://tinyurl.com/htrsxvj.

Footnote:
56. “What Happened in Ferguson?” The New York Times, Aug. 10, 2015, http://tinyurl.com/htrsxvj.

[57] Demetrius, op. cit.

Footnote:
57. Demetrius, op. cit.

[58] “Major Cities Chiefs and Major County Sheriffs: Technology Needs — Body Worn Cameras” The Lafayette Group, December 2015, p. 2, http://tinyurl.com/mv4ym6p.

Footnote:
58. “Major Cities Chiefs and Major County Sheriffs: Technology Needs — Body Worn Cameras” The Lafayette Group, December 2015, p. 2, http://tinyurl.com/mv4ym6p.

[59] “The Fourth Amendment,” Legal Information Institute, Cornell University Law School, http://tinyurl.com/k4mvu8r.

Footnote:
59. “The Fourth Amendment,” Legal Information Institute, Cornell University Law School, http://tinyurl.com/k4mvu8r.

[60] Friedman, op. cit., p. 213.

Footnote:
60. Friedman, op. cit., p. 213.

[61] Levinson-Waldman, op. cit., p. 532, http://tinyurl.com/kuxb2tj.

Footnote:
61. Levinson-Waldman, op. cit., p. 532, http://tinyurl.com/kuxb2tj.

[62] Ibid., p. 533.

Footnote:
62. Ibid., p. 533.

[63] Friedman, op. cit., p. 222.

Footnote:
63. Friedman, op. cit., p. 222.

[64] Ibid., p. 223.

Footnote:
64. Ibid., p. 223.

[65] Ibid.

Footnote:
65. Ibid.

[66] Levinson-Waldman, op. cit., pp. 539, 544, 546, 547.

Footnote:
66. Levinson-Waldman, op. cit., pp. 539, 544, 546, 547.

[67] Joh, op. cit., p. 28.

Footnote:
67. Joh, op. cit., p. 28.



Document APA Citation — See Alternate Citation Style
Mantel, B. (2017, April 21). High-tech policing. CQ researcher, 27, 337-360. Retrieved from http://library.cqpress.com/
Document ID: cqresrre2017042103
Document URL: http://library.cqpress.com/cqresearcher/cqresrre2017042103
ISSUE TRACKER for Related Reports
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Apr. 21, 2017  High-Tech Policing
Sep. 16, 2016  Jailing Debtors
Jun. 07, 2016  Crime and Police Conduct
Dec. 12, 2014  Police Tactics
Apr. 06, 2012  Police Misconduct
Oct. 14, 2011  Eyewitness Testimony
May 06, 2011  Business Ethics
Mar. 17, 2000  Policing the Police
Nov. 24, 1995  Police Corruption
Sep. 06, 1991  Police Brutality
Apr. 19, 1974  Police Innovation
Sep. 02, 1966  Police Reforms
Jan. 12, 1954  Federal Police Activity
Apr. 01, 1932  Proposed Expansions of Federal Police Activity
BROWSE RELATED TOPICS:
Civil Rights and Civil Liberty Issues
Computers and the Internet
Consumer Behavior
Consumer Protection and Product Liability
Crime and Law Enforcement
Criminal Law Procedure and Due Process
Privacy
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