In the twenty-first century, policing faces serious challenges. Technology is moving so rapidly it is difficult for policing agencies to stay ahead of those who would do us ill. And a very real, and ongoing, threat of terrorism has made clear to all of us just how much harm can be done. Both advancing technology and terrorism have required those charged with our safety to employ new tools and novel strategies.
With those new tactics and tools, though, come equally great threats to our liberties. Rapid advances in technology mean that the government can get its hands on virtually all our personal information, quickly—and in many instances the government claims it can gather information stored in the cloud or held by third-party providers without probable cause or a warrant. Technological advance also has made it possible for the government to store vast amounts of the information that it collects, compiling dossiers on us, even if we are not suspected of anything. The very real terrorist threat causes the public, understandably, to be more acquiescent even as the government expands its powers.
New policing technologies and strategies pose complex questions. Under what terms should the government be able to access our information stored in the cloud? Is it meaningful to distinguish between the content of that information (like the text of an email) and the “metadata” (the addressing information)? When the government employs new technologies such as license plate readers or facial recognition, is it even a “search” governed by the Fourth Amendment? Does the Constitution have anything to say about “predictive policing”—the practice of gathering and mining vast amounts of data to try to predict criminal behavior before it occurs? What should the rules be for bulk collection of our data as part of the war on terror?
Above all, are these new tools and technologies making us safer? Which of these new policing tools and tactics works, and which do policing agencies employ simply because they have access to them?
This final part examines the challenges posed by new policing technologies and the ongoing threat of terrorism. Chapter 9 asks how we begin to figure out whether the use of any given technology even qualifies as a “search,” thus bringing the Constitution into play. Chapter 10 calls into question the old rule that allows the government to get all our information from third parties without warrant or probable cause, now that most of our information is held by third parties. Chapter 11 looks into issues surrounding the government’s practice of gathering our information and compiling it in vast databases. Here we will meet yet one more constitutional limitation on policing, the Due Process Clause. Finally, Chapter 12 asks what tools are appropriate to counterintelligence and the war on terror when the rights of Americans are at stake as well.
There is one overarching theme here: when considering these questions as they arise, it is essential not to lose track of the basic principles of democratic and constitutional policing. Those principles, if employed in a clearheaded way, will ensure we stay true to our values, and have policing that is effective. Both terrorism and emerging technologies have exacerbated the tendency of policing agencies to keep things hush-hush, to act without permission. Although, as we saw in Chapter 1, there is some room for operational secrecy in policing, a constant theme of this part is that government must get back in the habit of seeking democratic sanction for its actions. Similarly, warrants and probable cause remain essential elements of protection when the government is engaging in suspicion-based searching; they do not simply go out the window when new technologies are employed. And if the government is conducting surveillance without cause, it is essential that it do so in an even-handed way, not singling out groups for special attention without sufficient justification.
It is often claimed—it has been the constant claim throughout history—that shortcuts are needed on these basic protections to keep us safe. But what history has proven, time and again, is that such claims are often incorrect. Democratic deliberation ensures we are doing sensible things. Warrants and probable cause make certain we are not chasing down blind alleys. The Constitution is not at war with our safety; properly understood, it is integral to it.