ARGUMENT: Digital PrivacyPrivate Data/Public Regulation
Police, increasingly relying on the collection of digital data, seek fewer search warrants and more requests to harvest metadata. They buy data from brokers, they track location and other aspects of our lives. Sometimes police collect the data themselves. More often they gather it from third parties. Barry Friedman writes that “The benefits of this approach are uncertain, but placing this much personal data in the hands of the government has its costs.”
Policing increasingly relies on the collection of digital data, often of people for whom there is no basis for suspicion. Police seek fewer search warrants and more requests to harvest metadata, they buy data from brokers, they track location and other aspects of our lives. Sometimes police collect the data themselves. More often they gather it from third parties. They do so by purchase, and by court order.
Barry Friedman writes in Lawfare that
The benefits of this approach are uncertain, but placing this much personal data in the hands of the government has its costs. It endangers our personal security, and our sense of privacy. It threatens racial equity, and our right to associate, including for political activity. It puts enormous power in the government to control behavior. This article [the reference is to Friedman’s article, published as a Hoover Institute Aegis Series Paper No. 2105] in the makes the novel argument that, as a matter of constitutional law, policing agencies cannot collect digital data, particularly about individuals for whom there is no suspicion of wrongdoing, without a sufficient regulatory scheme in place. This includes a justification for collection that can be shown to further public safety, and sufficient safeguards to protect individual interests. if these practices are to continue, legislative authorization and regulation is requisite.
Here are the first few paragraphs from the introduction to his essay:
Police collect information—that is what they do, and they could not do it without help. No doubt from the beginning of policing, officers have relied upon private parties to aid their investigations. Tipsters tip, snitches are paid, and well-meaning denizens share the information they possess. At crime scenes, police collect the names of people who may have seen something and follow up on those leads. And for the most part this has been, and remains, unregulated.
But there has been a sea change, brought upon us by technology, a change so dramatic it has transformed policing itself. Increasingly, the information police collect is digital. Fewer search warrants, more requests for orders to harvest metadata. Purchasing large pools of private data from data brokers. Capturing location information in various ways. Tapping into a network of private security cameras. And so on. Sometimes police collect the data themselves. More often they gather it from third parties. They do so from volunteers, by purchase, and by court order.(1)
