The report, published Jan. 10 by the RAND Corporation and titled Future-Proofing Justice, looks at the criminal justice system from the perspective of those on the enforcement side, as well as those in academia and the civil rights arena.
Brian Jackson, a researcher on the project, said the goal of the work was not to outline more convenient ways for law enforcement to negotiate the technology world, but rather to try to think through these technology issues before they become a crisis situation.
"One example is the encryption debate about people’s mobile devices, where depending on if you think about a mobile device as sort of the modern person’s diary, then it makes sense that with a warrant police should be able to get access to that,” he explained. “But there is some research that talks about the fact that these devices are gradually sort of taking on roles that are more akin to their mind and their identity. And as these devices become human implantable, even physically, will become part of the person.”
But the debate dives in deeper than whether law enforcement should be able to gain access to your personal device. Larger questions loom, such as, are implantable medical devices fair game when it comes to determining your positions at any given time? Should authorities be allowed to pull a GPS record of your travels through a heart monitor or other device? Or does this equate to a modern form of self-incrimination?
“This effort was trying to queue up these questions about technologies that are sort of on their way to happening, some of the steps have already happened," Jackson said. "Because it’s better to think through and argue about what the right compromises are when we don’t have an immediate high-profile case that will turn on what the answer to that question is.”
Another issue is that of data sharing and retention. The opportunity to share data between agencies and organizations poses a great benefit to the criminal justice systems in terrorism and criminal cases, but in doing so, data quality and context must be a consideration.
One area where the context and quality of data could become an issue, Jackson said, is gang investigations. If the people around a gang suspect are logged into a database without context, they could be mislabeled as gang affiliates of the subject. This provides no value for the investigator and could potentially damage the life of the misidentified subject.
“If you keep the context of that data … then someone who gets that data will know that it is speculative," he said. "But if it’s converted into just a database entry of suspected gang associates or observed gang associates, then if that information is shared without the context, you could be in a position where another department who gets access to it is essentially making the wrong decision or reaching the wrong conclusion about that person."
Issues like this raise questions as to whether data expiration, similar to an annual credit report, should be a consideration for the law enforcement agencies retaining the information.
Also of note is the expanding presence of the Internet of Things (IoT) and smartphones. With personal assistance devices, like the Amazon Echo, being integrated into daily life, Jackson said the devices aimed at convenience are likely to become a sort of beacon for law enforcement looking to solve crimes.
“Again, this is a question of what trade off we want to make," he said, "because when we have IoT devices, particularly things that are voice activated, we are essentially putting an open mic in any room where those devices are resident."
While citizens' personal convenience certainly factors into the conversation, Jackson said a company willing to share data with law enforcement could lower the access bar for an agency that might have otherwise needed to go through other steps to obtain information.
“On the one hand, there is a lot of potential there,” he said. “The flipside of that means the hurdle for law enforcement to get that capability in a location is much lower. This really sort of emphasizes the trade off.”
As technology continues to shape the conversation around what is acceptable and what is not, Jackson said that society at large will need to set the boundaries. And while many decisions are likely to happen on a case-by-case basis in American court rooms, he noted that starting the conversation early will be key to reaching a more amicable compromise.
“The big thing is there are no right answers on most of these trade-offs," Jackson said, "but they are going to get harder as some of the technologies get more proliferated and embedded in the way society works and the economy works and so on."
