Federal policies that encourage and facilitate the procurement of spy technology have essentially turned state and local law enforcement into an extension of the federal government.
According to a paper recently published in the Washington Law Review by Catherine Crump, local and state police where once primarily focused no addressing the crime problems affecting their own back yard, but the federal government’s procurement program through the Department of Homeland Security(DHS) has incentivized local and state police to ignore local problems and instead buy surveillance gear marketed to “stop” terrorism.
Catherine Crump wrote “Surveillance Policy Making by Procurement,” a paper that takes a closer look at how federal government influences local police. Her thesis holds that local police stray from focusing on local issues after military surveillance tech is acquired. The DHS procurement program leaves law enforcement irresponsibly without guidance and oversight, and simultaneously weakens local control over law enforcement.
In an age of heightened concern about the militarization of local police and surveillance technology, how do local law enforcement agencies obtain cutting edge and potentially intrusive surveillance equipment without elected leaders and the general public realizing it? The answer lies in the process of federal procurement, through which the federal government, often in the name of combating terrorism, funnels billions of dollars to local law enforcement agencies that can then be used to purchase surveillance equipment. But the federal government does not take steps to ensure that local elected representatives and members of the public are involved in decisions about what technologies to acquire, or that anyone develops a protocol to constrain how the technologies are used. Surveillance policy making by procurement thus raises a host of questions about accountability for policy choices when the federal government influences local policing through grants, but does not address all relevant concerns and how to deal with the inevitable spillover effects of the federal government’s national security initiatives on the ways local law enforcement agents carry out their more routine policing functions.
Crump covered four major points in her thesis:
Federal Funding of Local Surveillance
To tackle its national security policies, the federal government uses local law enforcement as its primary intelligence gathering resource. After 9/11, the only way for it to accomplish its goals was to supply local law enforcement with the tools needed to get the job down. Through a variety of grant programs, the DHS made billions available to the local law enforcement to purchase audio, visual, and data collecting equipment like license plate readers, telephone surveillance, telephone data extractors, and infrared illumination equipment.
While billions and billions are offered to purchase surveillance equipment, these programs do not offer guidance nor require guidance by local authorities.
Case Studies in Seattle, Oakland, and San Diego.
The second section of the paper gives an account Seattle, Oakland and San Diego’s history with federally-funded spy gear, including drones, facial recognition and a Domain Awareness Center – a data aggregation and analysis facility.
The acquisition and deployment of surveillance technology by all three cities’ police departments share some commonality, but unique scenarios developed after the public and local officials realized the surveillance equipment was active within the community. As the paper points out, unlike excessive use of force, surveillance is not easily detectable. It operates in relative secrecy. Local government officials, and the public at large, find themselves in adversarial positions with law enforcement agencies after the fact as the federal government seeks to implement and expand surveillance projects. Privacy advocates face many hurdles that include exposing tech that is covertly placed through the city, understanding current and future plans, demanding policy safeguards from police, and even means-testing the surveillance equipment for local priorities.
Problems with Current Surveillance Policy, Accountability, and Focus on Local Crime
Crump argues that while surveillance technologies can be great tools to piece together evidence, they have significant First and Fourth Amendment implications. Local officials should understand how effective use of these technologies can detour crimes (not just terrorism), and also how these same technologies can and will infringe on protected rights. First, officials need to understand that the procurement program does not provide adequate policy or authority in determining these. The responsibility of the privacy and speech safeguards falls on the local officials.
“The Supreme Court has privileged federal interventions in the form of conditional grants-in-aid over federal interventions that commandeer
state and local officials precisely because of its view that spending programs do a better job of preserving clear lines of accountability. But the case studies show that spending programs can generate considerable confusion over who is responsible for policy choices. This may be particularly true when the government creates policy voids by incompletely addressing a policy matter.”
Crump says city and state officials need to be aware of the needs of their community. Just because police can obtain a grant for spying gear doesn’t mean they should. Representatives are a great check on the executive branch, and can be an asset both to police and the community if they are truly informed of their community’s needs. If this technology is deemed an effective tool for the community, representatives need the forethought to build practical data management plans on collection, retention, use, and sharing. Also, abuse may occur within the police departments. Developing a policy that limits access only to selectively trained officers provides more accountability within the ranks of law enforcement rather than open access.
This thesis also questions whether the federal government should be in charge of formulating policy that is ultimately implemented at a local level. The problem of commandeering can easily arise. The hot topic is always 9/11 and stopping terrorism, however, the rate of actual terrorism is low. Therefore, Crump argues it is not a good practice for federal officials to develop a policy for technology that will be used for routine policing.
How to Build Good Surveillance Policy
Crump holds that while the federal government may not be the optimal body to oversee local surveillance policy, it could set fourth a transparency standard that requires local official involvement in procurement and policy making. It could also create privacy policies similar to those established for fusion centers for the use of such technology funded by the federal government.
States also need to address what is acceptable within their own borders. They need to be proactive in establishing policy-making requirements that each locality must put into practice.
“Reforms enacted on the state level would not provide as comprehensive a remedy as federal reforms because they would only go into effect in those states that adopted them. However, they would address more instances of surveillance policy making by procurement than would relying on each local government to enact its own legislative fix. Moreover, as Richard Briffault has pointed out, states have ‘greater resources and greater ability to mobilize public attention that comes from their relatively greater size and fewer numbers.'”
Local remedies can include impact assessment or even the appointment privacy officers.
“As a general matter, a privacy officer’s job responsibilities include formulating and monitoring compliance with privacy policies, handling public requests for access to data as well as complaints, and serving as a general resource on privacy and other civil liberties issues.”
Local authority is weakened by the DHS procurement programs because it shifts a police department’s focus from local priorities to federal priorities. The federal procurement programs destabilizes local law enforcement’s relationship with its community. Over time, local police accepts a primary role as a resource for the feds, not servants of its community.
Crjmp concludes that Instead of simply reacting to surveillance as it happens, every level of government has a responsibility to take proactive action in protecting rights, and focusing on the needs of the community.
Until state and local government take control of the situation, local law enforcement will continue to act as an extension of the federal government, and function as the sole authority over surveillance in the community, operating beyond any sense of responsibility to its people, or even the possibility of debate.
A movement has developed across the U.S. to address this issue. Last fall, local government officials in 11 cities announced plans to launch legislative efforts to pass ordinances that will take the first step toward limiting the unchecked use of surveillance technologies that violate basic privacy rights and feed into a broader national surveillance state. This proposed legislation requires law enforcement agencies to get the approval from their local governing body before obtaining equipment such as stingray devices, automatic license plate readers (ALPRs) and other surveillance technology.
Passage of this local ordinance in multiple cities will not only take a step toward protecting privacy at the local level, it will also help block the ever-more-invasive surveillance state.