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Police Panopticon

February 22, 2021

There Are Spying Eyes Everywhere—and Now They Share a Brain | WIRED, by Arthur Holland Michel, gives readers a glimpse into the automated fusion technology used by several police departments. Automated fusion is a process or program that synthesizes intelligence gathered from multiple sources. Normally, analysts or detectives must comb through and make sense of vast amounts of data and transfigure that into useful, real world intelligence. Clearly, an issue arises when there is too much information for human analysts to process. Automated fusion hastens the process. So what does this look like? The author provides an example in which the software picked up a 911 call regarding an assault. The software investigated the assault by collecting a treasure trove of information about people in the area of the reported assault, including: names of people arrested for violent crimes, addresses of parolees living nearby, information regarding similar 911 calls, photographs of license plates on vehicles detected speeding away from the area, and video feed from cameras that may have picked up information about the crime. What would have taken police or detectives days, maybe weeks to gather, was completed in a few seconds.

Automated Fusion is not new to the intelligence agencies and the military, however, it is increasingly being used by local law enforcement. According to the article, NYPD uses a multi-intelligence fusion network that started as a counterterrorism system, but is now used for general police work. The author describes an unnerving scenario in which an NYPD official was able to access the system from his cell phone. There did not appear to be any restrictions on the searches, such as requiring a warrant or case number. From his fingertips, the official could access a citizen’s list of known associates, any cases in which the citizen was a victim or witness to a crime, whether they own a car, a heatmap of common travel routes, and a list of parking violations. The only thing the user needed was a name.

Like most technology, automated fusion is incredible, but also terrifying. On one hand, police investigations may improve and such software could result in quicker response time for EMS, firefighters and police. The article mentions another program called Patternizer, which reviews years of departmental data and links crimes that may be related. These programs could result in infinitely better and perhaps more accurate policing. Also, there is an argument that knowledge of constant surveillance will deter criminal behavior. This idea is demonstrated by the panopticon prison model, in which the warden is situated to watch prisoners at all times, but the prisoners cannot see the warden. Therefore, a prisoner does not know whether the warden is watching them at that particular moment, but the knowledge of being watched motivates the prisoners to behave as if they are.

On the other hand, do we want to be monitored at all times in public? Such technology may improve police work, but it could also give rise to false leads. If police or detectives are handed a packet of actionable intelligence that leads to a seemingly guilty suspect, will they dig deeper to ensure they have the right person?

As defense attorneys it is our duty to challenge the investigation every step of the way. Just because the software is churning out results, does not mean it is being done with 100% accuracy. Moreover, while there is no reasonable expectation of privacy in public spaces, the home is still very much protected. We must ensure that intelligence gathering devices do not invade the sanctity of the home without the proper judicial safeguards. Moreover, constitutional protections aside, the programs must contain sufficient protections to prevent abuse. For example, the NYPD official mentioned above is a mere click away from stalking an ex-girlfriend or an enemy.

Lastly, new age surveillance by local law enforcement is open to challenges. The defense bar needs to stay up to date on technological developments and privacy laws so that we may protect civilian privacy rights and force the courts to further define and clarify privacy law.