By Barry Friedman, Rachel Harmon & Farhang Heydari

For far too long, the federal government has failed to exercise its constitutional authority to mitigate the harms imposed by local policing. Absent federal intervention, though, some harmful aspects of policing will not be addressed effectively, or at all. States and localities often lack the necessary capacity and expertise to change policing, and many states and localities lack the will. This Article argues for federal intervention and describes what that intervention should look like. The Article begins by describing three paradigmatic areas of local policing that require federal intervention to create real change: excessive use of force, racial discrimination, and the unregulated use of surveillance technologies. Because state and local governments are either unable or unwilling to address these problems alone, the federal government should intervene to identify and enforce minimum standards, develop best practices, collect data, and distribute resources nationwide. Regrettably, Congress has failed to act adequately to improve local policing for the better, although it has tried to encourage reform through the use of its Spending Power. This Article argues that Congress should utilize its regulatory powers under Section 5 of the Fourteenth Amendment and the Commerce Clause to address these paradigmatic problem areas, and it explains how this can be done consistently with Supreme Court doctrine. Alongside—or in the absence of—congressional action, the executive branch has the power and responsibility to act to address policing’s harms. The Article explains that, though indirect, the President wields considerable power to influence policing by setting policy, implementing federal programs, enforcing civil rights, and supervising federal law enforcement. Although the executive branch should use this power to promote local policing that is effective, fair, and accountable, and that minimizes harm, administration after administration has failed to do so consistently and also has failed to hold federal law enforcement to these standards. Recent executive branch efforts have improved the situation, but there still exists a gaping chasm between how the federal government should be influencing local policing and how it is doing so today

109 Virginia Law Review 1527 (December, 2023), 101p.

By Anne McNamara

During the height of the Civil Rights movement, the Supreme Court in Terry v. Ohio crafted the policing power to stop and search an individual without a warrant, without probable cause, and if the officer possesses a reasonable suspicion of criminal activity. Thirty years later, in Whren v. United States, the Court willfully blinded itself to the subjective motivations of an officer who initiate a Terry stop, requiring only a claim of some lawful reason to initiate a stop to adhere to the Fourth Amendments protections. Despite overwhelming evidence that the Court’s Fourth Amendment jurisprudence disparately affects Black people, the Court continuously asserts that the Equal Protection Clause (EPC)—not the Fourth Amendment—is the proper constitutional avenue for relief from race-motivated policing. Even a defendant who successfully overcomes the EPC’s practically insurmountable requirement of proving discriminatory intent is not afforded the exclusionary rule’s protection. Ultimately, the Court’s use of EPC as its suggested remedy provides little concrete relief for individuals subjected to pretextual stops. Against this backdrop of racially influenced law enforcement, the advent and development of Facial Recognition Technology (FRT) has fundamentally altered American policing over the past decade. FRT is an algorithmic code, created by private companies, capable of recognizing a person’s facial identity by comparing it to other faces that are located in a centralized database. Some critics of the police’s use of FRT warn of its disparate impact on people of color who already face higher instances of police surveillance. Further, critics caution that FRT algorithms have higher error rates in identifying people of color, that databases used are often overly saturated with people of color, and that the police’s unregulated, unrestrained use of FRT reinforces preconceived notions of “Black criminality.” Historically, federal courts have been reluctant to condemn police implementation of technological advances as violative of the Fourth Amendment. While the police are prohibited from using publicly unavailable technology to surveil the details of an individual’s home, technology deployed by law enforcement in a public space often escapes constitutional constraints. In some instances, however, defendants successfully challenge police use of advanced technology for surveillance purposes through the lens of mosaic theory, which assesses police behavior in the aggregate to determine whether prolonged periods of surveillance constitutes an invasion of privacy impermissible under the Fourth Amendment. In light of the Court’s silence regarding FRT, a handful of cities and states have enacted laws that curb or completely ban police use of FRT. On the federal level, the preceding Congress proposed two bills: one seeking to require probable cause for police to deploy the technology, the other seeking to implement a complete federal ban of FRT and to disincentivize state and local use by withholding certain funding. This Note first surveys the Fourth Amendment jurisprudence that created a legal justice system that is willfully ignorant of an officer’s potential racial motivations.18 Then, this Note discusses the police’s implementation of FRT and how it further infringes upon Black people’s liberties and dignities under the guise of “neutral” technology. Next, this Note explores the Court’s reasoning in evolving technology and surveillances cases—with a particular emphasis on mosaic theory—and discusses state and proposed federal statutory approaches to FRT regulation. Then, this Note argues that the most dangerous uses of FRT are the least likely to be recognized and curbed by the Supreme Court due to its longstanding refusal to allow the constitution to check unrestrained police behavior, leaving Black people defenseless against FRT’s role in increasing the structural inequalities embedded in our legal system. This Note concludes by calling for a comprehensive federal ban on police use of FRT that adequately incentivizes state and local law enforcement to enact similar bans.

SUFFOLK UNIVERSITY LAW REVIEW [Vol. LVI:731 , 26p.

By: Paul Michael Cozens, Greg Saville, and David Hillier

Purpose – The purpose of this paper is to critically review the core findings from recently published place-based crime prevention research. The paper aims to critically evaluate the available evidence on the contribution of crime prevention through environmental design as a crime prevention strategy.

Design/methodology/approach – Large-scale evaluations of crime prevention through environmental design (CPTED) are reviewed with a view to clarifying current knowledge on the evidence of crime prevention through environmental design.

Findings – The review concludes that there is a growing body of research that supports the assertion that crime prevention through environmental design is effective in reducing both crime and fear of crime in the community.

Research limitations/implications – Although the paper may not review all the evaluations of CPTED, it nonetheless provides a detailed compilation and overview of the most significant research in the area, including an extensive and modern bibliography on the subject. Research implications will be the subject of a forthcoming paper.

Practical implications – CPTED is an increasingly fashionable approach and is being implemented on a global scale. Additionally, individual components such as territoriality, surveillance, maintenance, access control, activity support and target-hardening are being widely deployed. However, the evidence currently available is inconclusive and much criticised, which effectively prevents widespread intervention and investment by central government. The paper details the difficulties associated with demonstrating the effectiveness of CPTED.

Originality/value – The paper concludes that although empirical proof has not been definitively demonstrated, there is a large and growing body of research, which supports the assertion that crime prevention through environmental design is a pragmatic and effective crime prevention tool. This review provides an extensive bibliography of contemporary crime prevention through environmental design and a follow-up paper will discuss the future research priorities for it.

Property Management Vol. 23 No. 5, 2005 pp. 328-356

By Cecilia Hansen Löfstrand, Christel Backman

This review paper critically examines the work environment implications of the use of body-worn camera (BWC) technology reported in research. We found that published peer-review studies (90 articles) pay very little attention to the work environment of BWC users – police officers. Departing from the notion of the two faces of surveillance and of BWC technology as a surveillance tool with uncertain implications – control or protection of officers – we critically examine how expectations in relation to BWC introduction and its implications have been addressed to explain why so little attention has been devoted to the topic. We found a dominant control rationale facilitating (rapid) BWC implementation at the expense of officers’ work environment, health and safety.

New Technology Work and Employment, Volume36, Issue3 November 2021 Pages 327-347

By Jane Duncan

In spite of Edward Snowden’s disclosures about government abuses of dragnet communication surveillance, the surveillance industry continues to expand around the world. Many people have become resigned to a world where they cannot have a reasonable expectation of privacy. In this open access book, the author looks at what can be done to rein in these powers and restructure how they are used beyond the limited and often ineffective reforms that have been attempted. Using southern Africa as a backdrop, and its liberation history, Jane Duncan examines what an anti-capitalist perspective on intelligence and security powers could look like. Are the police and intelligence agencies even needed, and if so, what should they do and why? What lessons can be learnt from how security was organised during the struggles for liberation in the region? Southern Africa is seeing thousands of people in the region taking to the streets in protests. In response, governments are scrambling to acquire surveillance technologies to monitor these new protest movements. Southern Africa faces no major terrorism threats at the moment, which should make it easier to develop clearer anti-surveillance campaigns than in Europe or the US. Yet, because of tactical and strategic ambivalence about security powers, movements often engage in limited calls for intelligence and policing reforms, and fail to provide an alternative vision for policing and intelligence. Surveillance and Intelligence in Southern Africa examines what that vision could look like.

London: Zed Books, 2020. 

By Caitlin Chin

Ten years ago, when whistleblower Edward Snowden revealed that U.S. government agencies had intercepted bulk telephone and internet communications from numerous individuals around the world, President Barack Obama acknowledged a long-standing yet unsettled dilemma: “You can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience. There are trade-offs involved.” Snowden’s disclosures reignited robust debates over the appropriate balance between an individual’s right to privacy and the state’s interest in protecting economic and national security—in particular, where to place limitations on the U.S. government’s ability to compel access to signals intelligence held by private companies. These debates continue today, but the internet landscape—and subsequently, the relationship between the U.S. government and private sector—has evolved substantially since 2013. U.S. government agencies still routinely mandate private companies like Verizon and Google hand over customers’ personal information and issue non-disclosure orders to prevent these companies from informing individuals about such access. But the volume and technical complexity of the data ecosystem have exploded over the past decade, spurred by the rising ubiquity of algorithmic profiling in the U.S. private sector. As a result, U.S. government agencies have increasingly turned to “voluntary” mechanisms to access data from private companies, such as purchasing smartphone geolocation history from third-party data brokers and deriving insights from publicly available social media posts, without the formal use of a warrant, subpoena, or court order. In June 2023, the Office of the Director of National Intelligence (ODNI) declassified a report from January 2022—one of the first public efforts to examine the “large amount” of commercially available information that federal national security agencies purchase. In this report, ODNI recognizes that sensitive personal information both “clearly provides intelligence value” but also increases the risk of harmful outcomes like blackmail or harassment. Despite the potential for abuse, the declassified report reveals that some intelligence community elements have not established proper privacy and civil liberties guardrails for commercially acquired information and that even ODNI lacks awareness of the full scope of data brokerage contracts across its 18 units. Critically, the report recognizes that modern advancements in data collection have outpaced existing legal safeguards: “Today’s CAI [commercially available information] is more revealing, available on more people (in bulk), less possible to avoid, and less well understood than traditional PAI [publicly available information].” The ODNI report demonstrates how the traditional view of the privacy-security trade-off is becoming increasingly nuanced, especially as gaps in outdated federal law around data collection and transfers expand the number of actors and risk vectors involved. National Security Adviser Jake Sullivan recently noted that there are also geopolitical implications to consider: “Our strategic competitors see big data as a strategic asset.” When Congress banned the popular mobile app TikTok on government devices in the 2023 National Defense Authorization Act (NDAA), it cited fears that the Chinese Communist Party (CCP) could use the video-hosting app to spy on Americans. However, the NDAA did not address how numerous other smartphone apps, beyond TikTok, share personal information with data brokers—which, in turn, could transfer it to adversarial entities. In 2013, over 250,000 website privacy policies acknowledged sharing data with other companies; since then, this number inevitably has increased. In a digitized society, unchecked data collection has become a vulnerability for U.S. national security—not merely, as some once viewed, a strength. The reinvigorated focus on TikTok’s data collection practices creates a certain paradox. While politicians have expressed concerns about Chinese government surveillance through mobile apps, U.S. government agencies have purchased access to smartphone geolocation data and social media images related to millions of Americans from data brokers without a warrant. The U.S. government has simultaneously treated TikTok as a national security risk and a handy source of information, reportedly issuing the app over 1,500 legal requests for data in 2021 alone. It is also important to note that national security is not the only value that can come into tension with information privacy, as unfettered data collection carries broader implications for civil rights, algorithmic fairness, free expression, and international commerce, affecting individuals both within and outside the United States.

Washington, DC: The Center for Strategic and International Studies (CSIS) 2023. 60p.

By Roberts, T.; Mohamed Ali, A.; Farahat, M.; Oloyede, R. and Mutung’u, G..

This review provides the first comparative analysis of African legal surveillance frameworks. The study identifies nine core principles derived from existing guidelines as an analytical framework to identify opportunities to strengthen privacy protection, while narrowly targeting surveillance on the most serious crimes. Six detailed country reports are synthesised in this comparative analysis to produce a series of actionable recommendations for policy, practice and further research

Brighton, UK: Institute of Development Studies, 2021. 203p.

By Keith Guzik.

“Mexico’s Federal Police Intelligence Center (CIPF) was inaugurated on November 24, 2009… The CIPF, a subterranean structure colloquially known as El Bunker, serves as the command center for the federal government’s War on Crime… El Bunker features four video walls, each measuring 65 by 10 feet, displaying eighty rear-screen projectors arranged in four 2 by 10 configurations..

Luminos. (2016) 272 pages.