TO: Chief Smith

FROM: Cpt. Travis Herbek

DATE: March 1, 2021
SUBJECT: SBWC Technology, Concerns and Recommendations

Overview of Emerging Technology and Functionality

In recent decades, several emerging technologies have been introduced with significant law

enforcement applications. These technologies can exist either as hardware, physical systems

designed for specific tasks, or software, algorithms and other computer programs that can

analyze or manipulate existing data to form new insights. Perhaps the largest benefit of these

advances has been the economical aspect in which more traditional law enforcement resources

are being made available to agencies with limited resources.

One such example is the growth of the unmanned aerial vehicle (UAV). The UAV can

provide agencies with aerial, thermal, and other visual images of an area. Previously, such

aspects may have been limited to large agencies with the use of a manned helicopter. More

cutting-edge systems, such as facial recognition algorithms, offer law enforcement with another

tool to accurately identify unknown individuals. Similarly, automatic license plate readers use

the same concepts to accurately scan and identify license plates in photographs. Systems like the

ShotSpotter have a more specific use and deploy a series of microphones to detect gunfire. Cell

site simulators, “Stingrays”, give law enforcement the ability to simulate a cell tower for all

phones in a certain radius, though their use has notorious connotations.

Anticipated Legal and Regulatory Constraints

The great capabilities of these new technologies have drawn the attention of the legislature

and judicial system. Used improperly, violations of the First and Fourth Amendments of the
Constitution can arise from the deployment of these technologies. As always, it is our

department’s responsibility to weigh the benefits of emerging technology with the Constitutional

rights that are guaranteed to all members of the community we serve. Beyond our duty to the

Constitution, the ethical and moral use of these technologies must remain a guiding factor in our

agency’s policy decisions.

The United States Supreme Court heard cases regarding new surveillance technologies that

we can use to forecast their views into the future. In Kyllo v. U.S. (2001), the court held that the

warrantless use of thermal imaging on private residences constituted an illegal search. The court

followed in 2012, when it held in United States v. Jones, that the use of technology to provide

police with constant surveillance of a vehicle without warrant was also an illegal search.

Though they have not directly addressed the use of facial recognition or other more advanced

surveillance methods, these cases should provide the insight that the Court is recognizing the

uniqueness of the technological advancements and the ease on which they can violate an

individual’s right to privacy. It would be prudent for this agency to recognize that our state

Supreme Court can afford our citizens even greater protections than its federal counterpart and,

thus, strive to set our policies to exceed the federal case law standards.

Perhaps quicker to respond and more precise in their constrictions is the state legislature. The

State of California has addressed the use of facial recognition software by specifically banning

the use of officer camera data to be processed per Assembly Bill No. 1215, passed in 2019.

Notably, the bill contains language stating that “facial recognition and other biometric

surveillance technology pose unique and significant threats to the civil rights and civil liberties of

residents and visitors.”1 This language should serve as warning to law enforcement of the

legislature’s current attitude toward these technologies and, as a result, we should tread lightly in
our incorporation of them. An opportunity for the reintroduction of facial recognition presents

itself on January 1, 2023, as AB 1215 contains a provision that it is to be repealed on that date.

Put simply by the Law Enforcement Imaging Technology Task Force (LEITTF), “only after

a broader public and judicial acceptance of facial recognition is created and stabilized can it then

realize its full potential in becoming one of the most efficient and amazing law enforcement tools

every deployed.”2 Certainly, this thought can be extrapolated to be true for most emerging

technologies.

Community Outreach Strategies

Any planned acquisitions or deployments of surveillance technologies should be prefaced

by a significant campaign of community outreach activities. Outreach should be conducted in

advance of formal proposals to acquire the equipment and should continue in perpetuity to

demonstrate our commitment to transparency over the service life of the proposed program. Our

department should use multiple platforms to accomplish this task, such as on social media, city

council meetings, and where else possible to give the public any opportunity to be introduced to

and gain confidence in the proposed technology. On the adoption of facial recognition

technology, the LEITTF recommends the public be fully informed and program effectiveness be

publicized.2 Further, our publicized successes with new equipment should not be limited to only

the criminal aspect of our organization. The use of advanced surveillance technology to bring

positive resolution to missing persons cases or to provide resources during large scale natural

disasters are two opportunities to demonstrate to the public the well-meaning uses of this

technology.
Proactive Mitigation of Ethical Risks
In looking to mitigate the problems of the future, we should consider the lessons of the past.

As Sir Robert Peel’s wrote in 1829, it should be an agency’s goal “to recognize always that the

power of the police to fulfill their functions and duties is dependent on public approval of their

existence, actions and behavior, and on their ability to secure and maintain public respect.”3 Law

enforcement has always been given some ability to intrude on the privacy of the community,

however these new technologies offer capabilities to conduct intrusions of incredible detail. It is

our responsibility to proactively mitigate any ethical concerns that may arise following their

deployment. Bias represents one of the most sensitive subjects in modern policing. As identified

by the authors of a RAND Corporation research report, “identifying privacy and bias issues

inherent in [a facial recognition system] as early as possible enables the mitigation of future

risks”4. Again, it is wise to extrapolate these thoughts towards all new technology systems.

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1. California Assembly Bill No. 1215 (2019, October 8).

2. Law Enforcement Imaging Technology Task Force. (2019, March). Law Enforcement

Facial Recognition Use Catalog.

https://cdn.ymaws.com/www.ijis.org/resource/collection/93F7DF36-8973-4B78-

A190-

0E786D87F74F/Law_Enforcement_Facial_Recognition_Use_Case_Catalog.pdf

3. Law Enforcement Action Partnership. Sir Robert Peele’s Policing Principles.

https://lawenforcementactionpartnership.org/peel-policing-principles/

4. Yueng, Douglas et. al. (2020). Facial Recognition Technologies: Designing Systems

that Protect Privacy and Prevent Bias.

https://www.rand.org/content/dam/rand/pubs/research_reports/RR4200/RR4226/RAN

D_RR4226.pdf