Advanced police surveillance technologies pose significant privacy concerns

“Much of the Supreme Court’s previous treatment of police surveillance has rested on the belief that individuals have no expectation of privacy in public places, and that surveillance technologies that merely improve the efficiency of police investigations comport with the Fourth Amendment,” he said. “While officers must obtain a warrant before using some technologies, the courts generally do not regulate efficiency-enhancing technologies.”

Those assumptions have been workable in the past because of the limited use and capability of efficiency-enhancing technologies. But with the advent of automatic license plate readers and surveillance cameras with biometric recognition, the efficiency of the surveillance itself is becoming a constitutional issue, Rushin said.

“Since no one has a reasonable expectation of privacy when they’re in public, that means that a police officer can do whatever a normal person can do without any kind of special approval,” he said. “They can observe your license plate and write it down on a piece of paper and run it through a database. But now they could also use an automatic reader to scan license plates in bulk — up to 1,800 license plates per minute, in fact. That will invariably vacuum up enormous amounts of data on innocent people, too.

“So you have technology that might replace the efforts of dozens, even hundreds, of individual law enforcement officers.”

In the absence of regulation, police departments across the country have developed dramatically different policies on the use of public surveillance technologies.

“Data retention policies vary dramatically from one place to the other, and many local departments don’t have any policies whatsoever,” Rushin said. “In fairness to law enforcement, part of that is because many smaller departments don’t have many surveillance cameras or other devices. But that’s changing. The rate at which they’re adopting and utilizing these technologies isn’t matching the rate at which they’re adopting retention policies to regulate those new technological devices.

“What that means is that local police departments have been using surveillance technologies to retain more and more locational data without establishing policies on retention and data integrity.”

According to Rushin, legislative bodies must take the lead and limit the retention, identification, access and sharing of data acquired by digitally efficient public surveillance technologies.

The paper also makes recommendations for ways that states could start to regulate the retention and integrity of surveillance data obtained by law enforcement surveillance technology. It proposes a model state statute that would be a “substantial step in reigning in the unregulated efficiency of emerging investigative and surveillance technologies,” Rushin said.

“The model statute addresses some very core information privacy issues, so it’s no different than in any other field where you’re concerned about the second-hand use of data, or the abuse of data,” he said. “It means establishing basic conditions on who can access the data. It would also give a police department discretion to craft unique data policies tailored to its community’s specific needs, while also encouraging some level of statewide consistency.”

— Read more in “The Legislative Response to Mass Police Surveillance,” Brooklyn Law Review (forthcoming, December 2013).