(a) When engaging in policing-adjacent activities, private actors and entities should take steps to ensure that they embrace and promote the principles of sound policing and do not act to undermine sound policing.
(b) Governments should decline to utilize the products or services of private actors and entities whose products or services detract from, or do not promote, sound policing.
(c) Legislative bodies should regulate the conduct of private actors and entities that affect policing directly, as well as the ways in which public actors rely on and engage with private actors and entities that conduct policing-adjacent activities.
Comment:
a. Private actors and policing-adjacent activities, generally. The criminal system in general, and policing in particular, is heavily influenced by the conduct of private actors. Every day these actors make decisions—large and small—that determine policy and tactics across a range of policing issues. Individuals call 911 and serve as witnesses. Technology companies design investigative and surveillance tools, making essential decisions about the capabilities of the technology, its safeguards, and what training to offer policing customers. Nonprofit entities advocate for and administer community-based programming, sometimes as an alternative to police, other times as an extension of them.
Many of these influences are inevitable parts of the policing ecosystem. We expect victims and witnesses to report crimes. We permit individuals to hire private security and install private surveillance devices on their property. Government cannot possibly design and manufacture police weapons, body cameras, records-management systems, and much more, without private participation.
Although the participation of private actors and entities in policing is inevitable, private actors pose unique challenges regarding governance of their conduct and participation. Constitutional restrictions and statutory obligations like open-records laws often do not apply to these actors. Although there are some laws that regulate private actors, such as prohibitions on making false reports to the police, many of the actions of private actors and entities at present fall largely or entirely outside the scope of regulation.
b. The harms of private activity. Although private action is inevitable, too often it imposes harms and detracts from sound policing. There are many documented instances of individuals calling 911 to complain or express concern with people—all too often people of color—who seem to be doing nothing inappropriate other than living their lives in ordinary ways. There are also false reports that lead to police enforcement. Vendors manufacture and sell technologies that increase the scope of police surveillance without adequate safeguards. This may be technology sold directly to policing agencies, such as mobile forensic-data terminals or license-plate readers. Or it could be technology sold to private individuals, which then is connected to police, such as video doorbells. Private foundations finance the acquisition by police of equipment that may include weaponry, tactical gear, and surveillance tools. It is possible that some of these technologies serve to make society safer, but often claims of enhanced public safety are not established through any empirical testing.
c. For-profit entities. Many private actors engaged in for-profit activities have the potential to support, or to undermine, the principles of sound policing. Among other things, for-profit entities develop surveillance technologies used by policing agencies, shape the behavior of police personnel through training programs, collect and sell vast amounts of personal and sensitive information regarding the populace, and take on investigative duties as hired security. All for-profit actors engaged in such policing-adjacent activities should ensure that their actions do not undermine the Principles spelled out in the preceding Chapters, and, when applicable, should ensure that their actions adhere to those Principles. For example, producers of technologies used by policing agencies should ensure that their technologies are designed in ethical ways, including, for example, that their algorithms do not exacerbate or engrain racial disparities. Technology companies should not obscure how their products work in ways that risk fair-trial rights, by, for example, forcing policing agencies to sign nondisclosure agreements. Private entities that offer trainings to police agencies and their personnel should ensure that their curricula are aligned with the principles of sound policing, promote evidence-based police practices, and do not risk undermining constitutional protections. For-profit entities that collect sensitive information about individuals should make all efforts to aggregate and anonymize data, and they should hand over information containing identifiable personal information to the government only upon court order. Those entities should never sell personal, identifiable information to policing agencies. See § 6.01 (limiting use by policing agencies of private databases for investigative purposes). And finally, companies that hire their own security personnel should recognize the potential for their security to invade personal rights and create harmful collateral consequences, both through direct interactions between security personnel and individuals and through the involvement of local police for low-level offenses. Companies employing security teams should abide by all Principles in this project that are applicable to their work.
d. Nonprofit entities. There is a tendency to think that nonprofits, because they do not have the same financial incentives as for-profit companies, pose no threat to sound policing. But much like for-profit entities, many nonprofit organizations can, through their actions, either support and promote or undermine sound policing. Charitable foundations can award grants to policing agencies that, at best, allow agencies to increase their toolkit for promoting sound policing, such as by purchasing transparency-enhancing devices, and, at worst, allow agencies to circumvent the democratic process and obtain invasive technologies or militarized equipment. Think tanks and other institutes can conduct research to support and develop evidence-based policing practices that also are rights-protective. Community organizations can offer services that can lessen the need for police intervention, such as by providing mental-health services and crisis-response teams as a first line of interaction with citizens in need; but local watch associations also can serve as extensions of police that foster low-level enforcement. In carrying out activities that can affect police agencies and police−community interactions, nonprofit organizations should consult and follow the principles of sound policing laid out in this project.
e. Individuals. Individuals have constant and unique opportunities to promote sound policing. When an individual witnesses police misconduct, he or she should document the misconduct and report it promptly to relevant authorities. Individuals concerned with promoting sound policing should take advantage of opportunities to do so, such as by serving on police-oversight bodies. At the very least, individuals should endeavor to do no harm and, when circumstances allow, should think critically about the need to engage policing agencies in a situation if the situation can be resolved without police involvement. Similarly, individuals should familiarize themselves with other social services in the area and should contact those services when appropriate instead of defaulting to calling on the police.
f. The need for, and benefit of, regulation. Regulation is needed with regard to the role of private actors in fostering sound policing, including but not limited to regulation of: (1) governmental contracting with private actors and entities; (2) government actors engaging with private entities outside of formal contracting; and (3) the conduct of private actors more generally. Regulation of this sort can enable policing agencies to obtain the benefits of working with or purchasing material from private actors, while mitigating some of the harms. For example, regulations could require the manufacturers of surveillance technologies to build in certain transparencies, such as recording automatically when the technology is used and providing audit trails. They could require that before police agencies accept private funding or donated equipment, the agencies go through the same approval processes as if they were being allocated funds for that purchase. And regulation of training can ensure that it is evidence-based and makes no unproven claims.
Reporters’ Notes
Although these Principles primarily are focused on the role of governmental actors, including policing agencies, the reality is that private actors influence policing in a number of ways. See generally Farhang Heydari, The Private Role in Public Safety, 90 Geo. Wash. L. Rev. 696 (2022). For-profit entities may train police agencies in policing techniques, such as use of force, interrogations, and social-media investigations. See, e.g., Blue to Gold Training, https://www.bluetogold.com (offering trainings for officers in Fourth Amendment principles); Covert Media Consulting, https://www.covertmediaconsulting.com/social-media-open-source-investigations (offering courses “designed to teach law enforcement personnel how to legally utilize and exploit Open Source and Social Media intelligence in their respective roles.”); Wicklander-Zulawski & Associates, Inc., https://www.w-z.com/law-enforcement/ (offering seminars instructing law-enforcement officers on interview and interrogation techniques). These entities also may generate information on individuals that police can access or that can be shared easily with police. See Sarah Zhang, How a Tiny Website Became the Police’s Go-To Genealogy Database, The Atlantic (June 1, 2018) (explaining how investigators used genealogy website GED match to identify perpetrators of unsolved crimes); Kim Lyons, Amazon’s Ring Now Reportedly Partners with More than 2,000 US Police and Fire Departments, The Verge (Jan. 31, 2021) (describing Ring’s partnership with thousands of first-responder departments and noting that law enforcement asked for video concerning over 22,000 incidents in 2020). And, by insuring policing agencies, private insurance companies can alter law enforcement’s incentives, making it more or less costly to violate civil rights. See Joanna Schwartz, How Governments Pay, 63 UCLA L. Rev. 1144, 1188 (2016) (noting that “[t]he premiums paid by jurisdictions are usually . . . experience rated, such that reducing the costs of litigation will also reduce the costs of those premiums.”). Some large corporations, like Walmart and Target, run their own forensic labs to investigate criminal activity that affects them or occurs in their stores; those companies may share the information they gather in their own investigations—unconstrained by the laws and policies that apply to governmental actors—with law-enforcement agencies. See Kaveh Waddell, CSI: Walmart, The Atlantic (Apr. 3, 2017), https://www.theatlantic.com/technology/archive/2017/04/csi-walmart/521565/. Non-profit entities similarly influence policing through their actions. Money from private philanthropic foundations has made it possible for policing agencies to purchase surveillance and investigative tools, as well as to offer mental-health services. See, e.g., Marcus Garner, 12K Cameras to Give Atlanta Police Broader Window to City, Atlanta Journal-Constitution (Feb. 27, 2014) (discussing expansion of surveillance-camera network supported by the Atlanta Police Foundation); Spirit of Blue, https://www.spiritofblue.org/ (private foundation explaining that “[t]hrough our fundraising, the foundation is able to provide grants in partnership with law enforcement safety equipment manufacturers ranging from illumination to ballistic protection to firearms.”). They also may lobby agencies for policy changes and legislative changes in the law surrounding policing. See, e.g., Emily Birnbaum, Tech’s Favorite Lobbyists Want to End Qualified Immunity for Cops, Protocol (June 17, 2020), https://www.protocol.com/big-tech-police-reform (reporting on an announcement by the Internet Association, a technology trade association, “that it will lobby Congress and state legislatures to eliminate qualified immunity for police officers and to demilitarize police departments across the country.”); FSA and the Legislative Process, Florida Sheriffs Association, https://www.flsheriffs.org/law-enforcement-programs/legislative (describing lobbying efforts “to support and monitor legislation that ensures public safety in Florida” and linking to past priorities like expanding drone laws to allow law enforcement to use them more readily). Private individuals, too, play an important role in policing. Through activities like serving in neighborhood-watch associations, making initial contacts with police, serving on civilian-review boards, or getting involved in restorative-justice programs, individuals can be involved in nearly every step of the policing process.
Some degree of private involvement in policing is inevitable. Police use tools that are made by private companies. Individuals initiate police involvement by dialing 911. Law enforcement relies on individuals to assist investigations and participate in criminal proceedings as witnesses. This inevitable involvement can be either beneficial or detrimental. It therefore is important to recognize the ways in which private actors can support sound policing, as well as how they may detract from it.
It is vital to recognize that involvement by some private actors already does promote sound policing. Nonprofit entities, including research institutions, can and do conduct research into the efficacy of policing practices, and may promote ways to reduce violence in a community while respecting civil rights. See Evidence-Based Policing, George Mason University Center for Evidence-Based Crime Policy, https://cebcp.org/evidence-based-policing/current-projects/ (describing studies on policing practices, including the cost-benefit effectiveness of license-plate-recognition technology and problem-oriented policing); Police Executive Research Forum, How PERF’s Use-of-Force Guiding Principles Were Developed, https://www.policeforum.org/how-perf-s-use-of-force-guiding-principles-were-developed (explaining that proposed guiding principles on the use of force was “based on years of work involving hundreds of police officials . . . and field work” in various locations). Groups of individuals may organize, either formally or not, to serve as observers and document police misconduct—documentation that can play a key role in holding police and agencies accountable when they are not acting in accordance with sound policing. See, e.g., NLG Legal Observer Program, National Lawyers Guild, https://www.nlg.org/legalobservers/ (explaining that the Legal Observer® program is “designed to enable people to express their political views as fully as possible without unconstitutional disruption or interference by the police” and offering trainings for individuals to become NLG Legal Observers®). Private entities also can offer trainings or engage directly with populations in ways that adhere to the Principles set forth in this project. See, e.g., MH First Sacramento, https://www.antipoliceterrorproject.org/mh-first-sac (organization dedicated to “interrupt[ing] and eliminat[ing] the need for law enforcement in mental health crisis first response by providing mobile peer support, de-escalation assistance, and non-punitive and life-affirming interventions”); What is CIT?, CIT International, https://www.citinternational.org/What-is-CIT (“The Crisis Intervention Team program is . . . an innovative first-responder model of police-based crisis intervention training to help persons with mental disorders and/or addictions access medical treatment rather than place them in the criminal justice system due to illness-related behaviors.”). And technology providers can publish transparency reports, documenting the number and scope of government requests for information about their customers. See, e.g., Google Transparency Report, transparencyreport.google.com (listing the number and type of requests for user information from governments).
Although private actors can, and often do, promote sound policing through their actions, this is not always the case. Private actors have a variety of incentives, and these incentives may not promote—or even align with—sound policing. Private individuals could act maliciously, utilizing the police for their private motives. See U.S. v. Garcia, No. 21-20309, 2022 WL 1014146 (5th Cir. Apr. 5, 2022) (affirming federal felony conviction of person whose knowingly false reports of their neighbors’ supposed dangers to the public resulted in tragedy). Or they could operate out of simple ignorance, still with malign effects. Regrettable are the number of individuals calling 911 to report perfectly innocent activities of Black and brown individuals simply living their lives. See, e.g., Janice Gassam Asare, Stop Calling the Police on Black People, Forbes (May 27, 2020) (recounting instances in which the police were called because Black people were barbecuing, selling water in a park, renting an Airbnb, and napping in a dorm room); Maria Sacchetti et al., Public Outrage, Legislation Follow Calls to Police About Black People, Wash. Post (May 27, 2020) (reporting on similar instances). Unlike police agencies, whose guiding principle is to serve the community, private actors may be answerable to groups outside of the community at large. Companies with shareholders are beholden to them, and these companies often will prioritize profits over sound policing. Creators and purveyors of policing technologies will respond to demand and distribute investigative tools even if those tools are incompatible with principles of sound policing, and they may distribute “educational” materials regarding these tools that reflect a one-sided view of the utility of such tools. Private entities may employ private security personnel who are not trained in the principles set forth in this project concerning public interactions, and whose priority is to protect the entities against financial loss, even if that means using intrusive methods or hiring officers with records of misconduct. Companies also may collect and store a tremendous amount of personal data, then sell it to policing agencies. See Lauren Sarkesian & Spandana Singh, How Data Brokers and Phone Apps Are Helping Police Surveil Citizens Without Warrants, Issues in Sci. & Tech., https://issues.org/data-brokers-police-surveillance/ (Jan. 6, 2021) (describing how data brokers collect personal data, and noting that “recent reporting suggests that government law enforcement agencies are rapidly becoming major buyers.”).
Fiscal incentives are not the only ones that lead private actors to act in a manner that is not in accord with these Principles. Public-interest groups may be guided by constituents or board members concerned with a limited subset of issues, or focused on how issues influence a specific group of people, rather than the community at large. For example, police unions, representing law-enforcement officers in disciplinary proceedings, can influence police discipline in a way that protects wrongdoers inappropriately. Private individuals interact with police in ways that reflect their own biases, such as the phenomenon of people calling 911 about individuals “living while Black.”
Despite the tremendous and wide-ranging influence private actors can have in the policing sphere, monitoring and regulating their conduct is complex and done all too infrequently. The reasons for this are manifold, but they are rooted in the difficulties in enacting and enforcing rules that regulate private actors. As a threshold matter, most constitutional mandates and existing laws that apply to government agencies and can be invoked to hold actors accountable when they violate an individual’s rights simply do not apply to private actors, even when they are engaged in policing-adjacent activities. For example, the Fourth Amendment of the U.S. Constitution applies to “invasions on the part of the government,” Boyd v. United States, 116 U.S. 616, 630 (1886), and 42 U.S.C. § 1983 provides liability for violations of rights when the violator is acting “under color of” state law. Of course, legislatures at the local, state, and federal level could and should regulate some actions by private actors. Although there are laws such as prohibitions on making false police reports, legislatures could, for example, pass hate-crime legislation regulating or providing recourse for calls to law enforcement that are motivated by discriminatory animus. See, e.g., Maria Cramer, San Francisco Takes Action on Racial Profiling in 911 Calls, N.Y. Times, https://www.nytimes.com/2020/10/20/us/san-francisco-caren-911.html (Oct. 21, 2020) (describing legislation approved by San Francisco Board of Supervisors that would allow the subject of a false or frivolous 911 call to sue the caller and recover damages if the police responded and the subject was harmed); Los Angeles Times, Proposed Grand Rapids Ordinance Would Outlaw 911 Calls Based on Racial Profiling, KTLA, https://ktla.com/news/nationworld/new-laws-could-outlaw-racially-motivated-911-calls/ (May 27, 2019). They could actively prohibit policing agencies from contracting with companies found to engage in behavior that is at odds with the goals of sound policing. See Adi Robertson, Lawmakers Propose Ban on Police Buying Access to Clearview AI and Other Data Brokers, The Verge, https://www.theverge.com/2021/4/21/22395650/wyden-paul-fourth-amendment-is-not-for-sale-act-privacy-data-brokers-clearview-ai (“A bipartisan group of lawmakers has proposed banning police from buying access to user data from data brokers, including ones that “illegitimately obtained” their records—like, its sponsors say, the facial recognition service Clearview AI.”).
Although legislatures should act to regulate private actors engaged in policing-adjacent activities, the reality may well be that, between the slow pace of lawmaking and the efforts of private actors to avoid regulation, much private behavior that influences policing will remain unregulated. It therefore is incumbent upon private actors to be thoughtful about whether and how their actions and conduct promote sound policing. At a minimum, private actors whose work is related to policing should review the Principles of this project and should follow the standards and guidance set forth for law-enforcement agencies when those actors are engaged in similar activity.