by Anthony W. Accurso
Transparency and accountability in law enforcement make for better relationships between police and the communities they serve, but a growing reliance on tech provided to police by private companies is reducing transparency.
An October 2021 report in the journal Science highlighted this trend of outsourcing police tech to private companies, who then use legal rules designed for civil litigation to deny public access to how these tools work within the criminal system.
“[T]o gain competitive advantage over rivals,” wrote the report’s author, Elizabeth Joh, “companies may decide to protect their intellectual property and market advantage by invoking trade secret privileges, demanding nondisclosure agreements with customers, and imposing other forms of property protections. These forms of commercial secrecy, common enough outside of the criminal justice system, pose challenges to basic police accountability.”
Joh, a law professor at the University of California, Davis who has written extensively on policing, technology, and surveillance said that tech companies will often provide a tool to law enforcement, along with training on how to use the tool, but will refuse to divulge to the police or public how the tool actually works. This raises questions of reliability of the data or conclusions generated.
It also creates a situation where police are admitted as “experts” in court, despite lacking all but the most basic of training in a tool’s use and a short history of using it to solve crimes. In the rare instances where courts challenge the officers’ credentials or a tool’s validity, the private company will assert trade secret privilege to deny a defendant’s access to information necessary to mount an effective defense.
Even where courts require the prosecution and its tech provider to provide materials about a tool’s inner workings, prosecutors will then dismiss an indictment due to their contractual nondisclosure requirements.
Other relationships are even less transparent, such as those imposed upon police departments by contracts mandated by Shotspotter, who provide results to law enforcement without ever selling or purchasing the equipment or tools themselves. The department merely pays for the service and its results without ever having access to the tool itself. This significantly limits the public’s access to how this tool operates.
Techdirt’s Tim Cushing points out that this customer relationship—between tech companies and police—is difficult to monitor directly but that governments can pass laws that limit law enforcement’s ability to acquiesce to contractual terms that limit transparency. But legislators will only do so when under pressure from constituents.
If we are going to trust police to ensure the safety of communities, then they should have access to the technologies that enable them to do so. But this does not mean they can abrogate their responsibility to be open to public scrutiny, especially when a defendant’s freedom, or life, is at stake.
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