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Stop the Police Surveillance State Too

We can't let cash-strapped police departments shift from racist human policing to racist technology-driven policing.

"In response to a loss of funding, police departments are likely to consider shifting from more expensive, racist, human policing to more cost-efficient, racist, technology-driven policing," writes the authors. (Photo: Jim Gehrz/The Star Tribune/AP)

In the wake of George Floyd’s murder, protestors throughout America march to demand an end to police abuse. Advocates for the compelling movement to divest from the police and reinvest in communities convincingly argue that significant portions of the tax dollars we spend on policing would be better spent supporting the needs of communities of color and on alternatives to policing itself. Continuing to rely on overfunded police departments, which seem all too happy to continue to enforce laws in a racist manner and unwilling to limit aggressive uses of force, does not advance public safety.

Consider how the racial disparities in the enforcement of marijuana laws have contributed to the mass incarceration of persons of color, or how the enforcement of trivial criminal infractions—like selling loose cigarettes or driving with a broken tail light—have repeatedly led to the murder of Black people. These practices more than adequately illustrate the devastating scope and impact of America’s policing problem.

But even where defund/divest efforts succeed, police departments may be able to undermine some of this movement’s most important objectives. Certain achievements, such as creating non-police infrastructures for mental health crisis responses, will be difficult to circumvent, but when it comes to the over-policing and over-surveillance of communities of color, a foreseeable problem awaits. In response to a loss of funding, police departments are likely to consider shifting from more expensive, racist, human policing to more cost-efficient, racist, technology-driven policing. Should this play out, we will be left an altered but equally dangerous beast to fight.

And there is a very real risk of that happening. It is a risk the Movement for Black Lives has focused upon at length, and it is time we all do the same.

Surveillance Technologies and Racism

Like policing itself, investigations into surveillance technology deployments have revealedtime and again, that they are overwhelmingly unleashed against communities of color. These technologies include:

  • Automatic license plate readers (ALPRs) that track wherever you drive;
  • Cell-site simulators (a.k.a. “Stingrays”) which use your cell phone to locate you and track your movements;
  • Surveillance cameras with facial recognition, which can track you whenever you are in public, and are far more likely to misidentify persons of color;
  • Surveillance lightbulbs, which transform streetlights into cameras with microphones; and
  • Surveillance planes with powerful wide-area cameras that can record the public movements of every person in an entire city.

The list goes on and on.

Increasing the mass surveillance of communities of color will increasingly make residents feel like they live in an open-air prison. Even worse, it would place those residents at extreme risk, because all police encounters begin with surveillance. Increased community surveillance always leads to increased encounters between residents and the police, and as we know too well, more police encounters with Black people lead to more injury and death. In other words, the rise in this kind of persistent surveillance will help maintain or further increase the racial disparities in whom police officers harass, arrest, and kill.

A Shift to Racist, Surveillance Tech-Driven Policing

We’ve already seen police departments respond to a loss of funding by replacing human policing with surveillance technologies that target communities of color on an extraordinary scale.

In 2013, after Camden, New Jersey’s police department was dissolved, a mass deployment of surveillance technologies transformed Camden into one of the nation’s most surveilled cities. The result, as observed by Vice News, was that it became illegal in Camden to be “walking while being white and … standing while being Black,” because the police assume those who are white and walking are buying drugs and persons who are Black and standing still are selling drugs

The result is that a Black Camden resident who is simply standing outside their home is likely to find themselves being confronted by a police officer. Despite suggestions to the contrary, Camden isn’t an example of how to reimagine policing; rather, it is a warning.

Even if police budgets are defunded, or if the police are prohibited from using tax dollars to purchase surveillance equipment, this problem could persist, because police departments regularly use civil asset forfeiture funds or privately raised money or in-kind donations to acquire surveillance technologies without public knowledge.

The Law Enforcement 2.0 Problem

The potential post-defunding/divestment shift from racist human-driven policing to racist, surveillance tech-driven policing presents what we call the “Law Enforcement 2.0 Problem.” 

This problem has three components:

  • The first is “Policing 2.0,” where more financially lean, tech-dependent police forces surveil communities of color more invasively and constantly than ever before.
  • The second is “Stop and Frisk 2.0,” where the police are able to surreptitiously monitor potential “suspects” looking for any reason to engage them in the same racist and violent manner that led to the current policing crisis.
  • The third is “Mass Incarceration 2.0,” where constant surveillance leads to more arrests in overpoliced communities and more persons of color being imprisoned for activities that go unnoticed in white communities.

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Despite making some progress in the fight to decrease the scope and scale of the criminal legal system, the mass surveillance that drives Law Enforcement 2.0 threatens to make the decarceration fight feel like a bathtub where the stopper is pulled out, but the water is left running. The increase in people being freed from prison will be matched or exceeded by those being returned to it. And one can only imagine the trivial infractions that will be observed and used to return persons on parole to jail.
This is not what progress looks like.

The CCOPS Backstop

So how can we ensure police departments cannot respond to successful defund/divest efforts by pivoting toward the surveillance technology-driven Law Enforcement 2.0 Problem? The answer is found in the Community Control Over Police Surveillance (CCOPS) effort, which the ACLU and 17 other national organizations launched in 2016, and whose laws currently protect 13.9 million residents in 14 U.S. jurisdictions. Under CCOPS, police departments are prohibited from secretly and unliterally acquiring and deploying surveillance technologies, regardless of how they are obtained.

Instead, police departments seeking to acquire and use this kind of technology must provide significant information to the public—including proposed use policies and information about potential adverse impacts on civil rights and liberties—to local residents in advance of a public hearing.

During the mandatory hearing, the public can weigh in on the proposed acquisition, which would only be allowed if the local legislature (e.g., city council) votes to allow it. If a city council goes rogue and approves a surveillance technology the public opposes, the public will know and can vote them out of office. By taking this power away from the police, CCOPS provides an important backstop the defund/divest and abolitionist movements need to protect their victories.

And it is important to note, should local communities decide they want to ban certain surveillance technologies from the outset, that they can add outright bans into their municipalities’ CCOPS bills, as San Francisco did with facial recognition.

The changes to policing we are pursuing together must be real and lasting. Combining defund/divest efforts with protective CCOPS legislation will strike a powerful blow against racist policing, whether in human or technological form, while preventing the police from thwarting the goals of the broader movement.

For more information on how to start a CCOPS effort in your city, visit www.CommunityCTRL.com.

Chad Marlow

Chad Marlow serves as advocacy and policy counsel for the ACLU.

Gillian Ganesan

Gillian Ganesan is a National Campaign Strategist in the ACLU’s National Political Advocacy Department. Ganesan develops and implements campaign planning at national and with ACLU affiliates for a number of issue areas, primarily Policing and Surveillance issues.

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