Andrew Guthrie Ferguson

The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement by Andrew Guthrie Ferguson is a study of how big data is and can be used by law enforcement to encroach on what used to be privacy. Ferguson is an Assistant Professor of Law at the University of the District of Columbia’s David A. Clarke School of Law. Professor Ferguson teaches and writes in the area of criminal law, criminal procedure, and evidence.

American’s have always enjoyed privacy. Constitutional amendments like the Fourth and Fourteenth keep government intrusions at bay for most people. The internet and mobile communications have changed all of that. We gladly give personal information away to web sites. Sites like Facebook not only have your personal information but they know who your friends are, places you check into, who and what you like, where you live, and pictures you take. Other web sites collect information items you purchase and also looked for. A Russian photographer has recently used a facial recognition application to find out information about strangers on the Metro. Simply taking a picture of a person on the Metro the photographer is able to identify that person through their social media accounts. Our private lives have become very public in the age of Big Data. Companies mine and buy this data for their own purposes. Say, for example, you owned a motorcycle shop and wanted more customers. You can pay a data collection company for personal information about everyone with a motorcycle license in your area. You would then have a contact list of potential customers. Information is still power in today’s world.

There have been news stories of people posting pictures of themselves on social media sites with automatic weapons, drugs, or taking part in illegal activities. Police have used these postings to arrested people. Social media postings do not have an expectation of privacy; what you post is essentially public. The Los Angeles Police Department, with outside help, tracks and records all crime and creates a database and an active map that predicts where and when crimes occur. The idea is to police a predicted area before a crime happens — actual crime prevention. NYC Police use cameras on the roads and sidewalk and can actively look for suspicious activity as well as possibly identify the criminal. These systems don’t seem to infringe on people’s rights. One does not have an expectation of privacy when in a public place.

In Chicago, an algorithm is used to help predict those who might commit a crime or become a victim of a crime. A list is made and police visit those people on the list and deliver a “we are watching you a message.” What happens when the algorithm is wrong is another thing. People without a criminal record or any other indicators might come up on the list because of a friend or relative who was killed. It’s not a perfect system but Chicago police rate it well. 70% of those shot were on the list and well as 80% of those arrested in shootings. Still, there seems to be no real infringement on individuals rights. Police use public data to predict crime and criminals

The problem comes in when the results of the Big Data seem to be the same as those in racial profiling. The highest crime areas are usually in the inner city and areas where the minority population is high. The Chicago list targets gang members 95% are African-American or Latino. Can Big Data just be another means of racial profiling? Ferguson looks at racial bias in Big Data and researches whether the data is biased, the system is biased, or if the data is correct. Ferguson also discusses the constitutionality of using Big Data as probable cause instead of “gut instinct.”

Where does law enforcement and Big Data limit themselves? Imagine if your local police force bought personal data from Google or Facebook. Private information becomes public information, becomes building blocks for private and government databases as Ferguson explains. A warrant is not needed for public information. Police gather public information all the time. License plate readers not only verify if the plates are good but also track and store all the locations where that plate has been seen. The police could, in time, track your daily routine. Upgrades to police body cams will have facial recognition software. One may not be required to identify themselves, but facial recognition will allow the police to identify a person anyway.

Interestingly there is a push by law enforcement to use Big Data and other monitoring; however, requirements for police to wear and use body cameras meets resistance by police who do not want their every action recorded while on duty. Similar algorithms used by police to monitor and predict crime could also be used to monitor police officers. Just like a small percentage of the population is responsible for the majority of the crime, a small percentage of police are responsible for the majority of the complaints. Big Data could help identify bad cops.

Presently, we willing give our data to Amazon, social media, mobile providers (location tracking, calls, and texts), and search engines. Walmart collects 2.5 million gigabytes every hour from its customers enough to 50 million, four drawer filing cabinets with information every hour. The government is also collecting data. Perhaps the most extensive is the Post Office’s Mail Isolation Control and Tracking program. It photographs every piece of mail. Your name, address, and the sender is recorded on every piece of your mail. Big Data could also be used by the police and other community services by identifying runaways, homeless, Amber Alert victims, and Silver Alert victims. There is good that can come from Big Data if it is used correctly. In the wrong hands, it could create tyranny. The Rise of Big Data Policing is a timely and possibly frightening book as what was formerly conspiracy theories become our daily reality.



Available October 3, 2017, from NYU Press… (mais)

Quote from the Introduction:

"The premise of this book is simple: imagine that instead of considering jury duty an inconvenience, you consider it a day of reflection -- a day to reevaluate your role as a constitutional actor. After all, a jury summons provides a government-provided free pass from your normal family and work responsibilities. It is literally the law of the land that you cannot complete your everyday routine. Jury duty thus provides an opportunity (with plenty of waiting time) to reflect on our constitutional values. In addition, you have the chance to practice the constitutional principles that have served this country well."

In 2018, I was called for jury duty for the first time in my life, and from the moment the proceedings began the whole process captivated me. This wasn't anything like the monotonous exercise I'd come to expect by watching network TV. One thing led to another and I was selected to the final 12-member group. Let me just say the entire experience was personally transformational. If I were religious, it would have been like finding God. The trial itself wasn't anything unusual as trials go. It was simply getting to participate in this process.

This book, Why Jury Duty Matters, is the closest explanation I've ever read which tries to capture in words the revelation I experienced that day.

Quote from Chapter 1:

"The Anglo-American jury is a remarkable political institution . . . It recruits a group of twelve laymen, chosen at random from the widest population; it convenes them for the purpose of the particular trial; it entrusts them with great official powers of decision; it permits them to carry on deliberations in secret and to report out their final judgement without giving reasons for it; and after their momentary service to the state has been completed, it orders them to disband and return to private life. The jury thus represents a deep commitment to the use of laymen in the administration of justice . . . it opposes the cadre of professional, experienced with this transient, ever-changing, ever-inexperienced group of amateurs."

Quote from Chapter 2:

"... it is simply that [the legal officials of the court] have got used to it... They do not see the awful court of judgement; they only see their own workshop."

This sentiment, and the quote from chapter 1, both capture that persistent feeling a juror will commonly wrestle with throughout a trial. It feels a little bit like impostor syndrome. Most of you will feel like you're not quite qualified to do this. But of course you are, and that's the point.

Quote from Chapter 3:

"Yes, equality during jury selection is your constitutional right. Even though you might naturally assume the voir dire process is conducted only to protect the defendants' or litigants' rights at trial, it also protects the right of jurors not to be excluded. While you cannot sue to enforce this right, and you must rely on the parties to challenge it, its existence recognizes the important role you play in the jury. So, as you sit there hoping that you constitute an excludable class with too much going on in your life to be on jury duty, remember that the fuss and bother is partially about you."

It's a strange realization. A trial is serious business and while it feels like the legal system scooped you off the street like some vagabond, you are just as key of a player as anyone else in that courtroom.

I look forward to the day when I'm summoned again. Even if I'm not selected, just to be a part of a civil ritual that's as old as civilization itself makes the whole effort worth it.… (mais)