In order to facilitate agency supervision and public accountability, policing agencies should, when practicable:
- (a) require agency officials to document their use of suspicion-based policing activities;
- (b) periodically review agency use of suspicion-based activities to determine compliance with agency policy, assess their efficacy, identify any potential concerns associated with their use, and make appropriate changes to agency policies and practices in response;
- (c) periodically inform the public of which suspicion-based activities the agency is engaging in, with what regularity and to what degree of efficacy.
Comment:
a. Documentation. Agencies routinely rely on documentation, auditing, and reporting requirements to facilitate supervision, ensure compliance with agency policies, and assure the public that agencies are using their authority to search and seize in a judicious and nonarbitrary manner. Many agencies already require officers to document certain kinds of search and seizure activities, such as stops and arrests, and they issue annual reports that describe the sorts of offenses for which the techniques were used, as well as the demographics of those stopped or searched. Agencies also require officers to document deployments of various technologies, such as drones.
In deciding whether and how to document the use of any given policing activity, agencies should—consistent with § 3.02(b)—consider the feasibility of documenting each use, the risk of harm that could potentially result if the activity is used improperly, and the likelihood of uncovering possible misconduct or misuse in the absence of such documentation. For certain forms of technologically enhanced surveillance, such as the use of automated license-plate readers or social-media-monitoring software, documentation potentially can be incorporated into the technology itself through automated audit trails. In these contexts, it is difficult to justify the decision not to activate these capabilities, or not to conduct periodic audits to identify potential problems. These automated systems also could be augmented in various ways, for example by requiring officers also to briefly document the basis for taking the action in question, which can be used to facilitate more careful oversight and review. For other tools, including more traditional street-enforcement tactics, manual recordkeeping may be the only option—and, depending on the intrusiveness of the activity and the frequency with which officers engage in it, may not always be worth the effort. Even in these contexts, however, technology can help. Officer cellular phones can often be equipped with data-entry applications to facilitate quick and easy reporting. Agencies also could require officers to document the frequency with which they engage in certain policing activities without requiring them to provide more specific information about each use. Some agencies, for example, require officers to document business checks or police−citizen encounters through their computer-aided dispatch systems, which could be used to track other activities as well.
Agencies also should issue periodic reports that inform the public of the policing activities they are engaging in and the degree to which they have proven effective. Particularly when it comes to various surveillance technologies—such as drones, Stingrays, or facial-recognition software—this sort of reporting can facilitate more effective public scrutiny of police decisionmaking and lead to more informed discussions about whether the benefits of using these technologies justify their budgetary and social costs.
Public reporting also can enable more informed judicial review. One of the challenges that courts often face is that they see only a small subset of police activity and, more often than not, see cases in which the police employed a particular tactic successfully to find inculpatory evidence or contraband. What they do not see are the many cases in which a particular tactic failed to turn up evidence. Having more and better data about the efficacy of various policing practices can help courts better assess to what extent the factors that officers are relying on—or the techniques they are using—are in fact consistent with what the U.S. Constitution requires to justify a search or seizure.
Although reporting requires a commitment of agency resources and therefore imposes costs of its own, in many instances these costs can be quite minimal. To the extent that agencies already are routinely documenting and auditing how they are using various technologies and tactics—which, as discussed in this Chapter and in Chapter 13, is an essential component of internal agency accountability—it should require little additional effort to generate aggregate statistics or de-identified data that can be publicly shared.
Reporters’ Notes
Policing agencies long have recognized that documenting, auditing, and reporting are important tools of both internal and external agency accountability. See, e.g., International Association of Chiefs of Police, Technology Policy Framework (January 2014), https://www.theiacp.org/sites/default/files/all/i-j/IACP%20Technology%20Policy%20Framework%20January%202014%20Final.pdf (emphasizing importance of documentation, auditing, and enforcement in regulating use of surveillance technologies). Proper documentation and auditing can help ensure that individual officers are using information-gathering techniques in a manner that is consistent with agency policy, and they can ensure at the agency level that the policies and practices regarding the use of specific information-gathering techniques are consistent with the goals of public safety, harm-minimization, and agency legitimacy outlined in Chapter 1. Documentation and auditing can show, for example, that a particular investigative technique rarely is effective at yielding probative evidence in criminal investigation, and it can help agencies identify alternative strategies to pursue. See Elizabeth E. Joh, The New Surveillance Discretion: Automated Suspicion, Big Data, and Policing, 10 Harv. L. & Pol’y Rev. 15, 42 (2016) (“When we know whether and how the police have adopted a big data tool to expand their surveillance discretion, we can assess whether such technologies are worth their financial, institutional, and social costs.”); see, e.g., ACLU, You Are Being Tracked: How License Plate Readers Are Being Used to Record Americans’ Movements 13-15 (July 2013), https://www.aclu.org/files/assets/071613-aclu-alprreport-opt-v05.pdf (“Of the 1,691,031 plates scanned by the Minnesota State Patrol from 2009–2011, just 852 citations were issued and 131 arrests were made. That is 0.05 percent of plate reads.” (internal citations omitted)). Routine public reporting can facilitate more informed discussion of agency practices—and often can help assuage public concerns about how particular tactics or technologies are used. See Barry Friedman & Maria Ponomarenko, Democratic Policing, 90 N.Y.U. L. Rev. 1827, 1848 (2015). It also can help courts to better supervise police use of information-gathering techniques that trigger Fourth Amendment scrutiny. Andrew Manuel Crespo, Systemic Facts: Toward Institutional Awareness in Criminal Courts, 129 Harv. L. Rev. 2049, 2075 (2016) (arguing that systematic facts allow a judge to “assess the consistency, the descriptive accuracy, and even the predictive accuracy of the probable-cause scripts that are routinely presented to her as justifications” for Fourth Amendment searches); Andrew Guthrie Ferguson, The Exclusionary Rule in the Age of Blue Data, 72 Vand. L. Rev. 561, 634 (2019) (“[D]ata encourages courts to think programmatically about the Fourth Amendment.”).
Many agencies already require officers to document a variety of information-gathering activities—ranging from consent searches and field interviews, to searches of automated license-plate reader (ALPR) databases and drone deployments. See, e.g., San Jose Police Dep’t Duty Manual L 3310 (providing for documentation of field interviews); Seattle Police Dep’t Manual § 16.170 POL-5 (requiring officers to document their reason for accessing historical ALPR data); Baltimore Police Dep’t, Policy 1004, Cell-Site Simulators (2016) (requiring documentation of Stingray use). And agencies at times make aggregate data public as well. See, e.g., About, Police Data Initiative, https://www.policedatainitiative.org/ (initiative involving more than 130 law-enforcement agencies that have released more than 200 datasets to promote open data and transparency in policing). Finally, a number of jurisdictions have adopted statutes or ordinances requiring agencies to document and report on the use of various techniques. See, e.g., Seattle, Wa., Surveillance Ordinance 1253156 § 14.18.060 (2017) (requiring annual, detailed reports on surveillance-technology use); Berkeley, Ca., Surveillance Technology Use and Community Safety Ordinance 7,592–N.S §§ 2.99.020(2), 2.99.070 (same); Or. Rev. Stat. Ann. § 131.935 (requiring agencies to collect demographic data on traffic stops); N.H. Rev. Stat. Ann. § 261:75-b(XI) (requiring agencies using APLRs to report annually number of devices in use, matches made, matches that resulted in stops or searches of vehicles or individuals, and other requested information); Ark. Code Ann. § 12-12-1805 (requiring entities using APLRs to compile statistical data including number of license plates scanned and number of matches into format sufficient for public review every six months).
In most agencies, however, documenting, auditing, and reporting on the use of information-gathering techniques is patchy at best. Rachel Harmon, Why Do We (Still) Lack Data on Policing?, 96 Marq. L. Rev. 1119 (2013) (arguing that “data collection and research efforts [] fall far short of what we would need to make informed judgments about policing”). This concern over recordkeeping is particularly acute with the expansion of big-data tools that expand the surveillance discretion of police, such as ALPRs and the use of social media data. Joh, supra at 20; Hannah Bloch-Wehba, Visible Policing: Technology, Transparency, and Democratic Control, 109 Calif. L. Rev. 917 (2021) (arguing that modern policing practices and new technologies allow police to engage in “low-visibility” strategies and have decreased police transparency).
The lack of data regarding the use of various information-gathering techniques makes it difficult to answer even rudimentary questions about their efficacy—or the manner in which they are used. Barry Friedman & Elizabeth G. Jánszky, Policing’s Information Problem, NYU School of Law, Public Law Research Paper No. 19-39, at 15–21 (Sept. 1, 2019) (arguing that we lack information to assess utility or social costs of many policing practices, such as ALPRs, body-worn cameras, and facial-recognition technology). The absence of accurate information also can generate community mistrust—and, ultimately, backlash against the technology itself. See, e.g., Gregory McNeal, Drones and Aerial Surveillance: Considerations for Legislatures, Brookings Inst. (Nov. 2014), https://www.brookings.edu/research/drones-and-aerial-surveillance-considerations-for-legislatures/ (noting that lack of transparency around use of drones may lead citizens to believe that they “represent Big Brother’s eye in the sky”).
Although routine documenting, auditing, and reporting undoubtedly impose some costs on agencies, these costs can be mitigated in various ways. Most agencies already have systems in place to facilitate internal record-keeping—such as computer-aided dispatch (CAD) and record management systems (RMS)—which also can be utilized to share information with the public. Police Foundation, Open Data and Policing: A Five-Part Guide to Best Practices, Part I: Developing Open Datasets (2018) [hereinafter Open Data and Policing]. Similarly, many police technologies—such as social-media-monitoring software and ALPR systems—have built in auditing and recordkeeping capabilities which can be used to facilitate both internal and external accountability. See Joh at 29 (arguing that one of potential benefits of big-data policing is that it “will produce information capable of audits and third party examination—a stark contrast from conventional surveillance”); Ferguson at 615-616 (arguing that digital-surveillance technologies, such as GPS tracking and ALPR systems, can be used to monitor police and foster accountability); see also Open Data and Policing (identifying variety of best practices, featuring case studies, for departments seeking to develop open-data sets); ArcGIS Open Data for Police, Esri (explaining that police can leverage technology from geographic information systems to produce open-data sets and providing an open-data solution services package to help agencies get started).