Joh – The Undue Influence of Surveillance Technology Companies on Policing

This week we consider the relationship and impact between technology companies and police surveillance. The article we are reviewing is by Elizabeth E. Joh, and comes from the New York University Law Review, Vol.92 Sept 2017, 101-130.

Here’s what we thought:

This paper is interesting for the way in which it explores the marketisation of law enforcement and policy making, with technology manufacturers such as Taser and others gaining undue influence over what the police do, and the decisions that get made. These problems emerge from the increasing reliance on technology provided by a limited number of vendors, each of whom may have interests beyond the mere application of law. There also then seems to be a problem of unfair competition, wherein companies such as Taser gain new contracts on account of existing business relationships. We are getting to a stage then when not only does technology start to dictate use, but the design decisions behind certain new technologies are then influencing policy decisions, even though design decisions will not have been made on exclusively law-enforcement lines.  

Mike Ryder, Lancaster University 

As of the time of writing, the newspapers are full with articles on the Carpenter ruling, so this article seems especially timely.  From a policy standpoint, I personally feel that this is an important subject about which there is little public awareness yet, which is troublesome. The actions of industry seem like they could seriously threaten human rights and civil liberties, and it is important to scrutinise these practices with a public debate. The influence of private actors in public policy is of course not limited to law enforcement and juridical practices, but in these sectors human rights are especially at risk. The issues described will likely also become important issues in the world of defence technology as well. 

However, I considered the level of analysis in article not seem extremely substantive. I would have appreciated a more in-depth analysis of how the industry acts as an actor in this debate, and what the result are of their influence on law enforcement and juridical practices, and what the larger societal implications are of these practices. I would also be very interested in a more in-depth investigation in the view of law enforcement on these developments. The actual political and societal processes in play are not really analysed. However, as this is a legal article, that is also to be expected. 

The article is very US-based, both through the empirical cases and the legal analysis, as is a lot of literature on the subject. I would be very interested to read more on this European perspective, both on the actual use, and on the legal and political analysis, and to see whether there are any significant differences. Digo’s articles on this subject are very European-focused so they provide an interesting contrast, but the methodological and theoretical approach is very different. Most of the articles on European surveillance technology come from International Political Sociology it seems – which is a great theoretical framework, but I wish the subject was taken up more by other schools as well. 

Maaike Verbruggen, Vrije Universiteit Brussels 

This piece by Joh was really interesting. The increasing use of surveillance technologies by police services continues major trends two trends, firstly the militarisation of the police, and secondly the increasing influence of technology companies in job roles. The militarisation of the police is often poorly described as though the purchasing of body armour and helmets to protect officers in crowd control or counter-terrorism situations is a bad thing, and that the police want to go to war with the populace. However, the reality is more that technologies used by militaries when performing similar operations can easily migrate to police-use. For example, technologies used to assist a manhunt for a terrorist in a warzone can also be used in a man hunt for a murder suspect in a crowded city. However, as Joh suggests, the fact that in both situations technology firms exert undue influence on policy and obfuscation of how these technologies work when they have a public impact in unnerving. 

When we think of the increasing influence of technology companies, we often fall into Hollywood imaginaries where corporate technology giants have some sort of ideological bent towards unrivalled political power which requires masses of data and the sacrifice of privacy. Yet, the reality is that this increasing influence is often driven by market forces and a simple desire to keep up with, or ahead of, competitors. The increasing presence of technology in policing is also a reflection of its increasing presence in all of our lives, and the drive toward greater and greater automation. Years ago, beat cops were the eyes and ears of police forces, nowadays technological surveillance can do the same tasks without needed ever expensive pay or conditions. Yet, the fact that policing is a public service, and we associate policing with the presence of officers, means that we are uneasy about such automation, and the handing over of such tasks to machines. Perhaps the real story behind all of this is that humans simply prefer dealing with other humans whom they can develop trust and relationships with, rather than machines which you do not understand. 

Joshua Hughes, Lancaster University 

Let us know what you think in the comments below.

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