Law Enforcement-Based Surveillance: A Reasonable Approach

Imagine walking without the benefit of sight or conversing without the use of hearing. As human beings, we have several sensory components that aid our decision-making process—meaning we typically have multiple sources of input that guide us in our actions. When one or more of these components are absent, other factors must compensate for the missing information. While these replacement solutions may or may not be perfect, they aid us in compensating for the physical and/or environmental challenges we encounter.

Following this analogy, imagine being responsible for dynamic, sometimes life-threatening police events that require immediate resolve, but you are missing the appropriate tools to help mitigate the issues. If somebody presented you with surveillance-based solutions to help compensate for the primary challenges, would you use the new technologies? Would you require appropriate vetting before use?

The use of innovation and technology in policing has been around since the earliest days of law enforcement. August Vollmer, the first chief of police in Berkley, California, and considered to be an instrumental figure in the development of criminal justice in the United States during the 20th Century, espoused technology implementation as one of his three primary principles, according to Proactive Police Management.

A progression in time has changed the perspective of reasonable—at least in terms of basic video surveillance.

Many agencies across the United States have continued with Chief Vollmer’s vision by utilizing various technological solutions and products; however, agencies sometimes implement systems without being appropriately vetted for legal or political concerns. In some cases, it’s the product developers and providers of technologies that drive the application and use cases. Many times, the technical capabilities of solutions far outpace the legislative preambles.

Is that reasonable?

In the legal world of electronic surveillance technologies, the use and admissibility of surveillance tactics will be based in part on “… a reasonable expectation of privacy.” So, let’s discuss reasonable.

In the early part of 1976, would it have been reasonable to place surveillance devices on every home in Visalia, California, with the hopes of catching a prolific burglar who was tormenting that community? What if the police leaders at the time could have somehow predicted this individual would later go on to commit dozens of sexual assaults and murders across several California cities—and evade capture for decades? Would the Visalia citizens at that time have been open to such broad surveillance tactics and a perceived reduction of privacy to catch a predator?

Hard to tell.

Fast forward to the 21^st Century, where it is common for homeowners to leverage multiple surveillance cameras for personal protection of their residence. Burglars, and even simple package thieves, are now consistently recorded on video surveillance—and the video is shared on social media platforms with hopes of identification and capture. Some homeowners are even willing to provide direct access to their home surveillance systems to police departments.

A progression in time has changed the perspective of reasonable—at least in terms of basic video surveillance. Many would say it is now “unreasonable” to expect behavior will not be recorded in the public domain. To exemplify, try causing a scene in a public space, say a park, a restaurant, or even a grocery store, without having multiple video recordings of the event posted within minutes to the Internet.

While video has become more commonly used by the average citizen, what about other types of surveillance? For years, law enforcement agencies leveraged global positioning systems (GPS) to track the locations of suspected criminals. This tool was used as a primary investigative tactic, many times without judicial review; however, in the landmark U.S. Supreme Court case of U.S. v. Jones, the use of GPS was deemed a search under the Fourth Amendment of the U.S. Constitution. Overnight, a commonly used law enforcement tool, frequently deployed without a court order, was now restricted.

Many times, the technical capabilities of solutions far outpace the legislative preambles.

The Supreme Court did not prohibit the use of GPS, but its decision changed the rules of the game. It would be difficult to calculate how many cases post-decision were affected across all law enforcement agencies; however, the newly-added level of scrutiny by the judiciary can be viewed as an acceptable step to balancing privacy rights and allowing continued use of a critical investigative capability.

The investigators responsible for examining the 1970s-era series of crimes that started in Visalia, California, could not have predicted the law enforcement capabilities we possess today. But law enforcement professionals of current times have seen enough high-tech advancement to know more capabilities are on the horizon.

Will it be reasonable to deploy these new future capabilities and hope the tools are not restricted or removed in the future by the courts?

As discussed, the use of video surveillance has become more acceptable with time. Advanced capabilities of camera hardware, however, are currently causing privacy concerns within some segments of society. Over the last few years, several cities—like San Francisco, California, and Portland, Oregon—have restricted or outright banned the use of facial recognition software. As recently as April 2021, several oganizations affiliated with privacy and civil rights were calling on government to ban the use of this technical capability.

As agencies struggle to fill empty police positions for various reasons, it is only logical to assume technology will continue to augment (or replace) investigative capabilities—especially as artificial intelligence and newly-advancing technologies become more prevalent. It would seem, then, that it is very reasonable to discuss some general practices to help strengthen the investigative bench and protect surveillance capabilities from being restricted or reversed. While this list should not be considered all encompassing, it should serve as a positive basis to start.

• Don’t be a lone ranger. Regardless of the agency's size, create a committee of diverse law enforcement stakeholders to evaluate the pros and cons of a given solution. Whether it be from information technologies, forensics, patrol, detectives, or even administrative staff, take value in the differing opinions. Someone in the group might highlight a potential future issue.
  
  
• Consider visiting other agencies that have tested or deployed the technology being considered (or coordinate with law enforcement-based think tanks). Spend time with the original implementers of the solution, visit with the end-users, talk to citizens in the area of deployment, and evaluate their policies and procedures.
  
  
• Define a reasonable testing period with valid objectives, strategies, and tactics for evaluation—before implementation. Consider partnering with a local college or university to act as independent arbiters as part of a research project for the school’s criminal justice department. These academic assistants will have access to various research methodologies that might prove beneficial.
  
  
• Based on the overt or covert nature of the surveillance solution, consider meeting with community stakeholders to discuss the type of solution being considered. This might prove to be a very informative session on the political implications of the technology.
  
  
• Consult with legal counsel, both departmental and prosecutorial elements. Risk mitigation and constitutional issues will be vital in helping ensure the longevity of any solution.
  
  
• Request your technology partner provide a trial of its solution before purchase to complete the steps mentioned above. Be sure to provide real-time feedback to them on recommended changes; the manufacturer should be grateful for the field-based experience and more than likely eager to help improve their capabilities.
  
  
• Once the tests and evaluations are complete, ensure a policy and procedure is completed, based on the lessons learned during the review, before full-scale implementation. Most importantly, train all personnel on the technologies’ capabilities and restrictions.
  
  
• Implement progress stages for evaluating lessons learned, legal shifts, and any other factors that might require changes to the technology or the policy/procedure, with hopes of ensuring continued use and privacy protection.
  
  
• Overall, be as open and transparent as possible.

Many agencies are very proactive with a process to ensure appropriate adaption and use of surveillance technologies. We must all follow their lead and work to do the right thing, in the right way, and for the right reasons, lest we risk the weakening of our bench.

As we walk into the future, it will be tough to see and hear the potential obstacles in front of us. But suppose we are reasonable in our approach to incorporating supporting surveillance technologies. In that case, we’ll stand a more substantial chance of surviving the challenges of the future—and keeping our bench strong.

Gawain Guedry, CPP, is vice president, business development and security integrations, at Thermal Imaging Radar. Prior to joining the private security sector, he spent nearly three decades in law enforcement as a member of the Las Vegas Metropolitan Police Department. He retired as the section commander of a technology-based investigative unit and was responsible for management and oversight of various technical solutions.