Technology vs. Civil Rights

         The balance between personal freedom and societal security has always been a hotly debated issue in United States society. The Constitution of the United States provides      safeguards for a wide range of civil rights including freedom of speech, freedom to assemble, and a right to privacy guaranteed by the Fourth Amendment, among others.                  Citizens of the United States have traditionally enjoyed an unprecedented level of civil liberty along with a high level of security within the national borders. Law enforcement technology has provided police with an ever growing arsenal of tools with which to detect and deter criminal activity. However, the civil rights challenges posed by such technology require vigilance on the part of the average citizen to ensure that vital Constitutional safeguards are not eroded.

    Law enforcement technology has evolved a great deal in the last forty years. Captain Jeff Smith of the Clear Creek County Sheriff’s Office is a 39 year veteran in the law enforcement profession, and was interviewed for this paper. Captain Smith began his career in law enforcement in an era without computers. Whereas today’s law enforcement officers are able to utilize comprehensive databases of information about individuals, vehicles, and property, officers in 1973 had to rely on word of mouth between officers (Smith). An individual who was detained for investigation could easily lie about his or her identity, and there was no way at the time to decisively verify a person’s identity without a government issued identification card. Information sharing between jurisdictions was also a much more complex process at the time, as agencies were often loathe to share information, usually in the hope that they would be the agency to capture a wanted party (Smith). One of the greatest advances in law enforcement technology was the introduction of computerized databases.

    The National Crime Information Center (NCIC), launched by the FBI in 1967, was the beginning of a new era in law enforcement technology. The NCIC is a clearinghouse of data related to wanted people, stolen property, and other items potentially of interest to local and regional law enforcement authorities (FBI). With the widespread adoption of computers by law enforcement agencies beginning in the 1980’s, the NCIC blossomed into an indispensable tool for police agencies across the nation, enabling data sharing between law enforcement agencies on an unprecedented scale. While today the NCIC is a staple tool in law enforcement, its development and use was quite controversial in the early days after its adoption (Smith). The notion that the government had the capability to collect and store personal data on individuals in the form of a computerized database was new and unsettling to some. Today, that notion seems quaint and outdated.

    The state of law enforcement technology in 2012 is a far cry from 40 years ago. The United States Department of Homeland Security (DHS) is testing a system known as Future Attribute Screening Technology (FAST) in order to attempt to predict persons in a crowded environment, such as an airport terminal, who may be intending to commit acts of terrorism or other crimes (Bernstein). The Patriot Act and other legislation has paved the way for increased electronic surveillance of those persons the government suspects may have committed or may intend to commit criminal acts.

    These ever evolving technological tools have given law enforcement unprecedented power to track and monitor citizens of the United States. The objective of adopting new technology is to enable law enforcement to stay a step ahead of criminals and terrorists in order to preserve public safety. New technology, however, brings with it questions regarding the application of that technology and how that application fits with the preservation of Constitutional safeguards.

    The most commonly encountered conflict with technology and civil rights is in the context of the right to privacy guaranteed by the Fourth Amendment to the Bill of Rights. The Fourth Amendment states that United States citizens shall be free from unreasonable searches and seizures of their persons or property, and also establishes the legal requirement for a warrant supported by probable cause to be issued before a person can be arrested or their property searched or seized (US Const, Amed. IV). Modern technology enables an imposition on personal privacy that was unimaginable when the Bill of Rights was drafted. The proposed FAST system serves as a useful example. FAST is designed to monitor and detect indicators in a person’s behavior as well as collect biometric data such as perspiration (Bernstein). If the Fourth Amendment promises that a people may be secure in their own persons, does such a system violate that right to privacy? A person may be nervous about traveling via airplane, and the potential exists with a system such as FAST that that person may be singled out for exhibiting signs of normal biological stress. Does the government’s habit of collecting personal data in a system such as the NCIC violate a person’s privacy and right to restrict who has access to that information? The balance between privacy and security becomes a difficult question when new technology is introduced into the mix.

    The balance between law enforcement technology and civil rights is an ongoing and fluid debate. Fortunately, each branch of the United States government, as well as the citizens of the United States, possess powers to remedy imbalances that may occur between the two. The Fourth Amendment requires a warrant to issue for search and seizure only upon demonstration of probable cause that a crime has occurred or is about to occur. The judicial branch of the United States Government serves as a gatekeeper between law enforcement and citizens who may be affected by their actions. In regards to technological evolution, the judiciary should endeavor to keep abreast of current developments, and interpret current and past legal precedents to make a determination regarding the constitutionality of the uses of various technologies. In extreme cases, where agents of the government repeatedly ignore clearly articulated judicial precedent, punitive sanctions in the form of a contempt citation may be issued to offending officials, providing a remedy to curb abuses.

    The legislative branch of the United States Government is another entity responsible for maintaining the delicate balance between privacy and security. In drafting new laws, a legislature is in a unique position to craft those laws in such a way that security is preserved to the maximum extent possible, while infringing on civil rights to the minimum degree possible. The Patriot Act serves as an object lesson here. Passed in the wake of the terrorist attacks of 11 September 2001, the Patriot Act, among other things, expands the use of warrantless wiretaps and other electronic surveillance of criminal and terrorist suspects. By passing a law that explicitly circumvents the protections of the Fourth Amendment, the legislature implicitly assumes a responsibility for monitoring effectiveness of the legislation in preserving security, while also being responsible for adapting the legislation to prevent abuse in the exercise of the power granted by the legislation.

    Falling under the executive branch of the various government branches, law enforcement itself has a moral duty, as well as a practical obligation, to preserve the balance of security and civil rights. The traditional motto of many law enforcement agencies “To Protect and Serve” encapsulates this obligation well. Law enforcement is obligated to make the best use of available resources to protect the population they serve. They are also obligated to preserve and protect the civil rights of the population, for without the protection of these rights, the society they serve ceases to exist, at least in the form envisioned by the founding fathers. Technology provides many tools to multiply the effectiveness potential of law enforcement efforts, and it is in the best interest of law enforcement to integrate these technologies in such a way as to minimize their effects on the civil rights of citizens, lest those tools be taken away by judicial or legislative action. Video recording technology is an excellent example. Many patrol vehicles now incorporate a dash mounted camera system with audio and video recording technology. These systems can prove very valuable in gathering evidence of criminal activity in an impartial manner. Video cameras are also widely used in surveillance of criminal suspects, as well as to record the daily activities of law enforcement officers. When employed within the proper scope, these technologies are invaluable to the effort to maintain security. As with any other tool, however, video technology is subject to abuse if not carefully controlled and monitored. Using video recording technology to record a person in a place where that person has a reasonable expectation of privacy without a warrant, for example, could constitute a violation of that person’s rights under the Fourth Amendment. If this technology is used in such a fashion too often, the judicial and legislative branches could act to curtail its use, potentially depriving law enforcement of a valuable tool. It is therefore in the best interest of law enforcement officials to self regulate the use of technology so that said technology may continue to be used effectively.

    While all three branches of the United States system of government can be shown to have responsibility for balancing security and civil rights, it is the citizenry themselves who have the most to lose from an improper balance between the two. Once a legislature passes a law, or a court decides a case, it can be very difficult to undo. It falls to the citizenry, therefore, to be the ultimate monitors of issues which may affect their security and civil rights. The ability of the government to govern in the United States rests and depends upon the consent of the governed. Citizens must therefore maintain a particular level of vigilance of the actions of their government, and take action to redress imbalances as they arise.

    The use of video technology is an important tool for the citizenry as well as law enforcement, perhaps one of the most important resources for civil rights enforcement (Wasserman). Not only can law enforcement record the activities of citizens, citizens may record the activities of law enforcement. With the expanding use of video technology, now commonly available in cell phones and other such mundane devices, obtaining impartial evidence of government wrongdoing is easier than ever.

    Citizens may also form watchdog groups, independent of the government, in order to monitor the government and seek a redress of civil rights imbalances. Citizen groups such as these are important in the process of balancing civil rights and security, because it is the citizens who ultimately reap the benefits of such a balance. The Leadership Conference is one such group. In their paper “Privacy Rights: A 21st Century Update”, Christopher Calabrese and Sandra Fulton of the Leadership Conference address the issue of the impact of technology on civil rights. They note that while Congress passed the Electronic Communications Privacy Act in 1986 to balance the emergence of new technology with privacy rights, the act has not been updated in any substantial way since that time (Calabrese and Fulton). By bringing a spotlight to issues such as these, the Leadership Conference is helping to bring pressure on the United States Government to address privacy and security imbalances.

    The American Civil Liberties Union (ACLU) is another group dedicated to the preservation of civil rights. The ACLU is at the forefront of citizen based efforts to preserve civil rights in the midst of advancing technology. In her blog post entitled “With Technology Like This, Who Needs the Law?”, Rachel Myers of the ACLU discusses law enforcement use of cell phone technology to track the physical movement of criminal suspects without their knowledge. Myers points out that while court orders for the use of such technology are sought and granted prior to the use of cell phone tracking, probable cause is not an element used in the obtaining of such orders (Myers). This would appear to violate the Fourth Amendment, but the lack of judicial and legislative regulation of this technology have thus far enabled its use in this fashion. Attention from citizen groups like the ACLU have enabled pressure to be brought on the United States government to more effectively address issues such as these.

    Balancing the need for security and the preservation of constitutional rights has always been a delicate act, hotly debated in United States society. The three branches of government that make up the system used in the United States each have an individual role to play in maintaining an appropriate balance. Citizens have the ultimate responsibility for monitoring their government. Civilian oversight of government programs and other operations is an essential part of making sure that civil liberties and societal security are appropriately balanced.



























Works Cited

Bernstein, Joseph A. "Big Idea: Seeing Crime Before It Happens." Discover      Magazine.          Discover Magazine, 23 Jan. 2012. Web. 21 Mar. 2012.          <http://discovermagazine.com/2011/dec/02-big-idea-seeing-crime-before-it-          happens>.

Calabrese, Christopher and Fulton, Sandra “Privacy Rights: A 21st Century Update”.           Civil Rights Monitor. The Leadership Conference, Winter 2012. Web. 1 Mar.          2012.

         <www.civilrights.org/monitor/winter-2012/privacy-rights-a-21st.html>



Myers, Rachel, ACLU. “With Technology Like This, Who Needs The Law?”.  American          Civil Liberties Union. ACLU Blog of Rights, November 14 2008. Web.  1 Mar.          2012.

         <www.aclu.org/blog/free-speech-national-security/technology-who-needs-law>



"National Crime Information Center." FBI. Federal Bureau of Investigation. Web. 21



         Mar. 2012 <www.fbi.gov/about-us/cjis/ncic/ncic>



Smith, Jeff. Captain, Clear Creek County Sheriff’s Office. Personal interview. 22 Feb.          2012. 303-679-2396

Wasserman, Howard M. “Orwell’s Vision: Video and the Future of Civil Rights          Enforcement”. Social Science Research Network. Florida International University          College of Law, October 23 2008. Web. 2 Mar. 2012.           <papers.ssrn.com/sol3/papers.cfm?abstract_id=1219162 >