Privacy is a touchy issue in the 21st century. At no other time in history has the capacity for mass gathering and storing of personal data by corporations and governments been possible at the scale seen today. As rapid technological advances continue to shape the way society views data collection, issues of privacy often come to the forefront of the discussion. Inevitably, society must decide what role law will play in shaping the data landscape. One common way of framing these discussions is to talk about a trade-off between privacy and security. On the one hand, data collection and use by government can serve the useful and valuable purpose of preventing, solving, and prosecuting criminal activity. On the other hand, every allowance given to the government weakens privacy rights that many hold dear and indeed have been enshrined in the US Constitution for over 200 years.
Often cited as an argument for allowing greater access and use of data for law enforcement is the refrain that, because these are the good guys, people who have nothing to hide should not worry about “big brother” watching over them, and should be thankful for the greater security and safety afforded to them. Unfortunately, this thinking is overly simplistic and wrongheaded for at least two reasons; and recent events surrounding a Denver agency illustrate this fact. First, it is disingenuous to talk about people “who have nothing to hide.” Many who object to government intrusion into their private lives are not in any way involved with criminal activity. But there are no doubt few who do not have aspects of their lives that they would like to keep private from the rest of the world. Secondly, just because an item or detail of someone’s life does not reveal criminal behavior, it does not logically follow that there is no malicious use to which that information could be put. For example, an association or relationship with someone who has a criminal record could become a tool for blackmail just as easily as a crime fighting weapon.
Perhaps unsurprisingly but nonetheless appalling is that according to some findings, “women appear over-represented among the targets of such abuse, especially by police.”
A March 15 report on the Denver Police Department’s problem with officers abusing their access to databases highlights these concerns. The department utilizes the National Crime Information Center, a database available to agencies nationwide, but as The Denver Monitor reports, “25 Denver officers have been punished for inappropriate use of the databases since 2006.” The abuses are troubling. For instance, one “officer ran a man’s license plate seeking information for a friend, who then began driving by the man’s house and threatening him . . . .” But perhaps even more concerning is that none of the officers involved have been charged with a crime, and the harshest punishment handed down was a three day suspension. As the New York Times points out, not all Police Departments treat misuse of data as leniently as Denver appears to.
Although the Denver Case is indeed worrisome considering the lack of consequences for law enforcement misuse of sensitive data, the problem is regrettably not isolated. In fact, the opposite may be the case in places where data and crime fighting are increasingly going hand in hand. One report from 2015 found that, in California, there had been a 100% increase in abuse since 2010, and that the California Department of Justice was failing to follow its own procedures for disciplining users.
There are wide ranging motivations for users of these massive databases of information, which include DMV records, gun registrations, and criminal histories to name a few data points. In Ohio, one officer was fired for spying on his multiple ex-wives. In St. Louis, two officers were caught running an unauthorized background check on a candidate for the police board which was supposed to supervise the police.
While it is certainly not a valid argument to assert that because a system is corruptible, it must be abandoned or shunned. All forms of governmental power would fail this strict test. However, there are troubling trends that must be examined and scrutinized. Society has increasingly adopted technologies that make private life inherently more public. Yet the principles behind strong privacy rights have not suddenly vanished. Indeed, if anything these questions of choosing among degrees of connectivity, access, privacy, and security, go to the core of why humankind values autonomy, dignity, and yes, privacy.
Given the means, and a structure that offers little resistance, oversight, or consequences, law enforcement agencies will abuse their access to personal data. A number of questions must honestly addressed. First, how much data and what type of information should really be available to law enforcement? This is a question looming over many debates about privacy law. Second, who should be doing the oversight? One problem here is that while it is problematic to have agencies police themselves, any other supervisory body will be at least somewhat susceptible to similar corruption. And third, as illustrated by the examples above, what will be the consequences for misuse of data? While the Fourth Amendment protects criminal defendants, it does not provide a remedy for the law abiding citizen that is spied upon for political reasons. These difficult questions should serve to temper the zealousness with which some promote big data as a solution to pressing concerns such as crime and terrorism.