Surveillance Policy Making by Procurement

By Crump, Catherine | Washington Law Review, December 1, 2016 | Go to article overview

Surveillance Policy Making by Procurement


Crump, Catherine, Washington Law Review


INTRODUCTION

One day some of us showed up [to] committee and there were some objects on [the] table. It turns out they were drones. We didn't even know we owned drones. We looked at each other [and asked], where did these come from? And then someone said, oh, you approved it two years ago.1

-Seattle City Council Member Nick Licata

The heavily militarized response to those protesting the police shooting of Michael Brown in Ferguson, Missouri generated real shock among members of the public, who did not realize that the federal government provided military-grade weapons and equipment to local law enforcement agencies. In the aftermath, the White House conducted a top-to-bottom review of federal support for local law enforcement equipment acquisition.2 It concluded that "training has not been institutionalized, specifically with respect to civil rights and civil liberties protections[.]"3 It also found that "[l]ocal elected officials are frequently not involved in the decision-making" about what technology their police forces acquire, and the general public is "unaware of what their [law enforcement agencies] possess."4

These statements are equally true of federal programs promoting the acquisition of surveillance equipment. The primary difference is that while the public does eventually witness the use of force, surveillance, by its nature, remains largely invisible. Yet surveillance equipment is also susceptible to abuse. The federal government's role in promoting its use merits close attention. This Article begins that work.

Federal agencies make considerable funds available to local law enforcement agencies, in the form of grants, to acquire surveillance technologies. Congress substantially increased the amount of funding available in response to the 9/11 terrorist attacks, reflecting the view that local cooperation was essential to prevent future incidents of terrorism. 5 its interest in enhancing the capabilities of local law enforcement agencies is likely to increase because anti-terrorism experts are convinced that Orlando and San Bernardino-style "home-grown" terrorist incidents are now a substantial threat to our security and safety.6

By influencing the process of procurement, the federal government can entice local police departments-over which it has no formal control-to enhance their surveillance capabilities in line with federal priorities. But this approach, which this Article refers to as surveillance policy making by procurement, has a variety of additional consequences. For the most part, local law enforcement agencies are directed and controlled by locally elected government officials, who are in turn subject to the pressures of local public opinion. Surveillance policy making by procurement can short-circuit this process when elected officials and the public are left without a meaningful understanding of what technologies their law enforcement agency is acquiring. This can create a governance void, in which law enforcement agencies deploy powerful surveillance technologies in ways that may conflict with local political preferences. Moreover, because the same surveillance technologies that are useful in investigating terrorism are also useful in investigating more routine forms of criminal conduct, federal programs created with the War on Terror in mind can have significant effects on standard law enforcement work.

To better understand surveillance policy making by procurement, this Article develops three case studies: Seattle's acquisition of a drone and deployment of a "mesh network"; Oakland's construction of a "domain awareness center"; and San Diego's rollout of facial recognition technology. The technologies that Seattle, Oakland, and San Diego acquired are not marginal improvements on existing tools.7 All substantially increase the capacity of a law enforcement agency to collect, store, analyze, and share information about individuals, with a potentially significant, negative impact on privacy. …

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