Paper Title

-- By ElizabethAkinyemi - 26 Jul 2016

For many Americans, a safe society requires its citizens to forgo some of their rights so that the law enforcement system may function efficiently. And perhaps this is a safe assumption to make. But even so, how many of our rights should we complaisantly forgo for the sake of a safe society? And which rights, if any, are too important to surrender? The right to privacy, some will argue, is one right that should never be infringed upon by the government regardless of whether the infringement is welcomed. Unfortunately, this infringement has already occurred via the use of privacy-invasive technologies such as Beware.

Beware provides law enforcement personnel with “actionable intelligence about the people, places, and properties involved in an incident” (Beware Brochure). The software collects information about a subject, such as criminal records, medical histories, and social media posts, and calculates one of three possible “threat scores:” red, yellow, or green. Police officials claim that the software provides information that will “help uncover terrorists or thwart mass shootings, ensure the safety of officers and the public, find suspects, and crack open cases” (Washington Post).

Even if it is assumed, arguendo, that the degree of infringement posed by Beware is necessary (or constitutional) to keep communities safe, should law enforcement personnel be trusted to use the information in an ethical manner? It is doubtful that Beware would be ethically implemented when one considers how often and easily police departments across the country abuse their power. A prime example of this is New York City police departments’ (ab)use of the “Stop Question and Frisk” policy. The lack of external and independent oversight accompanying police use Beware only serves to strengthen this doubt.

And despite the purported benefits of Beware, and similar software, cited by proponents there are a number of problems that arguably outweigh those benefits. In a short statement concerning the software, an Intrado representative stated that Beware provides “commercially available, public information that may be relevant to the situation and may give [officers] a greater level of awareness” (Washington Post). But what if the provided information is not relevant or correct and leads the clouding of an officer’s judgment” during a Fresno City hearing on Beware, a councilman asked that his threat score be calculated; and although he was given a green rating his home received a yellow rating. An official stated that the yellow rating could be a reflection of the previous occupants of the councilman’s house (Washington Post).

Yet another issue with Beware is that the officers using the software are unaware of how the collected information influences each subject’s threat level, because Intrado has kept the algorithm used in Beware a trade secret. Some have worried that a subject, for example, might receive a red threat score for making a Facebook post about her dislike for police officers. Such a rating may artificially intensify any interaction between her and the police and result in an excessive police response. If Beware usurps the job of deciding who is a threat and why, the police lose the ability to apply independent judgments and thus lose a degree of accountability for the actions they have taken but that were based upon Beware’s determinations.

In addition to the likelihood of police misconduct and misuse, the law does little to improve the situation. In Katz v. United States, the Supreme Court expanded the Fourth Amendment to protect expectations of privacy that are recognized as reasonable by society. In that case, the Court found that a caller “is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.” Katz, 389 U.S. 347, 352. This privacy protection, however, has not been for all types of communications.

The Supreme Court holdings in Smith v. Maryland and United States v. Miller established an assumption of risk exception that precluded privacy expectations when a person volunteered information to a third party. In addition, information that has been collected via a private party’s infringing searches is not protected by the Fourth Amendment, and can be constitutionally used by the government. United States v. Jacobsen, 466 U.S. 109. The current status of privacy law, then, does not afford realistic protection against the harms that are bound to be caused by police use of Beware. This is because it is the actions of third parties that constitute a major threat to individuals’ computer privacy. If the law is to be a meaningful source of protection, then it must address the police’s ability to monitor citizens through their relationship with third parties.

There has to be some fundamental changes in how the U.S. law enforcement is operated in order for a program like Beware to create more benefits than problems. But until such changes are made, it would be imprudent for individuals to agree that Beware represents an acceptable degree of privacy intrusion. Allowing third parties and police departments to cooperate in this manner will serve to further imprison individuals. Our ability to voice our dissatisfaction with the system, which is purportedly protected by the First Amendment, will soon become (if not already so) cause for government retaliation.

Work Cited

Jouvenal, Justin. "The new way police are surveilling you: Calculating your threat ‘score." Washington Post: n. pag. Washington Post. Web. 11 May 2016. <https://www.washingtonpost.com/local/public-safety/ the-new-way-police-are-surveilling-you-calculating-your-threat-score/2016/01/10/ e42bccac-8e15-11e5-baf4-bdf37355da0c_story.html>

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