For a number of years now, privacy law scholars have been writing, discussing, and worrying about the effect of big data on different aspects of our lives. Last year my own law school hosted a conference on big data, which covered government regulation of big data, its economic impact, and its effect on industries as diverse as health, education, and city planning. However, up until recently there has not been much discussion about the use of big data in the criminal law context. This is now starting to change, with a handful of articles addressing the inevitable future when courts begin to consider the use of big data in various aspects of the criminal justice system.
First, a definition: when people talk about big data, they are usually referring to the practice of accumulating extraordinarily large amounts of information from a variety of different sources and then processing that information to learn new information or provide valuable services. Private companies have been using big data for quite some time now. Retailers use it to determine customer behavior and affect shopping habits (As reported in a famous New York Times magazine cover story, Target uses large amounts of seemingly random purchasing data to determine that customers are pregnant, so that the store cab send the customers coupons for pregnancy and new baby items). Insurance companies rely on big data to try to determine who the safest drivers and healthiest people are. And all sorts of companies buy and sell this data to each other, seeking to mine it for information about their customers that they can use for economic advantage.
The two most intriguing aspects of big data as it relates to criminal law are (1) it can reveal otherwise unknowable information about individuals from public sources; and (2) it can predict future behavior. These two facts make it very likely that big data will revolutionize the criminal justice system over the next decade. Police have already been using massive amounts of data to help decide where to deploy resources, as exemplified by the famous crime mapping software found in police COMPSTAT programs. And the NSA’s massive metadata collection program, which is currently being reviewed by various district courts (see here and here), is another example of law enforcement trying to collect, analyze, and use big data to try to detect criminal activity–perhaps in violation of the Fourth Amendment. But as the amount of data about individuals grows and becomes more and more accessible, we will see big data being used at every stage of the criminal justice system.
The next use of big data will probably be with regard to Terry stops. Professor Andrew Ferguson of the University of the District of Columbia Law School wrote about this in a recent article in the University of Pennsylvania Law Review entitled “Big Data and Predictive Reasonable Suspicion.” As Professor Ferguson notes, Terry was originally developed (and has so far been applied) in a “small data” context, in which police officers use their own individual observations of the suspect, perhaps combined with their knowledge of the neighborhood, to develop reasonable suspicion for a stop. But the increasingly networked amount of information about individuals, combined with the speed at which law enforcement can now access this information, allows police to generate useful information about any individual they may see on the street. Professor Ferguson re-imagines Detective McDadden observing John Terry in a modern day setting:
He observes John Terry and, using facial recognition technology, identifies him and begins to investigate using big data. Detective McFadden learns through a database search that Terry has a prior criminal record, including a couple of convictions and a number of arrests. McFadden learns, through pattern–matching links, that Terry is an associate (a “hanger on”) of a notorious, violent local gangster—Billy Cox—who had been charged with several murders. McFadden also learns that Terry has a substance abuse problem and is addicted to drugs. These factors—all true, but unknown to the real Detective McFadden—are individualized and particularized to Terry. Alone, they may not constitute reasonable suspicion that Terry is committing or about to commit a particular crime. But in conjunction with Terry’s observed actions of pacing outside a store with two associates, the information makes the reasonable suspicion finding easier and, likely, more reliable.
Indeed, the standard of “reasonable suspicion” is so low that police officers may be able to use big data information to stop a suspect even though he was not engaged in any suspicious activity at the time, if a reliable algorithm predicts that he is at heightened risk for carrying a gun or narcotics.
Professor Ferguson notes a number of benefits from this use of big data, such as improved accuracy in Terry stops; the ability to use big data to allay suspicions and thus avoid an intrusive police/citizen encounter; and greater accountability for police actions. He also discusses the obvious dangers of widespread use of this data: the data may not be accurate; there will inevitably be false positives; and those who are poor or disenfranchised may be overrepresented in the “criminal propensity” data sets. Indeed, the entire idea of police making decisions about whom to stop based on a science that predicts future criminal activity has a dystopian science fiction feel to it. Professor Ferguson suggests some changes to both to legal doctrine and in how we collect and use big data in order to alleviate these concerns. He also notes that the “old-fashioned” method of relying on individual police officer’s observations–and unavoidably biased interpretations of those observations–is hardly a perfect system.
Other articles have begun to apply big data concepts to other aspects of the criminal justice system, such as parole decisions, analyzing criminal court rulings, and jury selection. But there are still more applications that have yet to be explored. What is the impact when police use big data analysis in search warrant application? What about prosecutors and defense attorneys predicting flight risks during bail hearings? What about judges predicting future dangerousness during sentencing hearings? And what about the criminal trial itself? The rules of Evidence allow a defendant to bring in opinion and reputation evidence to show that they are not the “type” of person who would have committed the crime in question; why not allow him to bring in far more accurate evidence based on big data about his unlikeliness to have committed the crime? The courts, no doubt, will be slow to accept this kind of information, and slower still to craft sensible rules for how to deal with it, but there is little doubt that the change will come.
Yesterday the public defender’s office in San Francisco published a video (which has since gone viral) that shows police officers arresting a public defender inside a San Francisco courthouse. The police were attempting to take photos of an individual in the hallway of the courthouse, apparently because the police suspected him in another crime. The public defender, Jamie Tillotson, who was at the courthouse representing another client at the time, intervened in the situation and told the police not to take pictures. A plainclothes police officer asked her to move aside, asking for “two minutes so that we can take photos,” and Tillotson refused. The police officer then threatened to arrest her, and she responded “Please do.” The police then arrested her, handcuffed her, and took her to a police station where she was held for an hour and then released, apparently without being charged, though a police spokesman later said that the case was still “under investigation.”
Unsurprisingly, the public reaction to this incident has been overwhelmingly against the police action. Whether or not the police officers’ action was in fact legally justified, I have no doubt that the police are going to end up on the losing end of this battle. The optics of the video are incredibly damaging, and the bumper-sticker version of the event (“Police arrest defense lawyer in a courthouse for representing her client”) will drown out any legitimate argument the police may have for their actions. To make matters worse, the arresting officer in the incident was the subject of a federal civil rights investigation for racial profiling in 2013. Meanwhile the public defender comes off very well in the video– she appears calm, reasonable, and brave during her arrest. So even if the police did act within the law, there is no question that this was–to put it bluntly–a very stupid thing to do.
But as in the Google Glass case, there are some interesting legal issues lurking behind all of this media frenzy. Did the public defender have the legal right prevent the police from taking photographs? And were the police legally authorized to arrest her for her actions?
In response to the first question, the police argue (correctly) that they are perfectly entitled to take photos of individuals who are in a public place–as was the case here. The public defender has a couple of responses to this argument:
First, the public defender could argue that the photo-taking here was just a pretext so that the police could begin to interact with the suspect and ultimately ask questions of the suspect as part of their investigation. There is some evidence to support this–the police said that the photo session would take “about two minutes,” which seems unduly long if all they wanted to do was take pictures. Indeed, witnesses report that after the defense attorney was led away in handcuffs, the police did in fact ask questions of the suspect. But legally, none of that matters. Under McNeil v. Washington and Texas v. Cobb, the Sixth Amendment right to counsel is offense-specific: that is, even if an individual is represented by an attorney on one case, the police can still ask the individual questions about an unrelated case. And the Fifth Amendment right to remain silent does not exist unless the suspect is in custody (more on that in a second). Thus, the police were legally entitled to ask questions of the suspect (though of course the suspect was free to refuse to answer). Furthermore, whether or not the photo shoot was a pretext for questioning is irrelevant in this case, because the defense attorney intervened before the police began asking questions–she was objecting to the mere taking of the pictures. And on top of all of that, the defense attorney could not “order” the police to not take photos or not ask questions–all she could legally do was to advise the suspect to not stand still for the photos or to not answer any questions. From the video, it is a bit unclear exactly what the defense attorney was doing that offended the police officers, but it appears that she was standing in between the police officer and his camera, thus making it more difficult for the police to take their photos–an action which they were clearly legally allowed to do.
The second response to the police argument is a bit more subtle, but in the end may have merit: although the police were allowed to take photos and ask questions, it appears they may have been conducting an illegal seizure. Early on in the video the police officer tells the public defender “I just want to take some pictures, OK, and then he will be free to go.” Of course, the suspect should always be “free to go” unless the police have reasonable suspicion to detain him under Terry v. Ohio. Perhaps the suspect was not truly being seized–perhaps the statement “and then he will be free to go” was meant to be a figure of speech–but when police officers use that kind of language, a suspect could reasonably believe that he was in fact not free to go, thus creating a seizure according to United States v. Mendenhall. So the public defender was (arguably) correct to intervene, but not for the reason she stated–that is, not because the photos (or the possible questioning) was illegal, but because the police statements (and possibly actions) were creating an illegal seizure. Of course, if the police did have reasonable suspicion to detain the suspect, then the seizure was proper–this is a fact that we would need to know in order to correctly evaluate the police action.
So the police may or may not have been acting legally with regards to the suspect, depending on whether they had reasonable suspicion to detain him. But what about their actions towards the defense attorney herself–that is, their decision to arrest her? Was she committing a crime?
Once again, the public reaction to this question is overwhelmingly opposed to the arrest. Part of this is because the video shows the police officer telling the public defender that she is being “arrested for resisting arrest,” which sounds like an absurd tautology–what is the original basis of the arrest that she is allegedly “resisting?” But as it turns out, the California law known as “resisting arrest” (California Penal Code Section 148) is actually quite broad, and allows police officers to arrest anyone who “willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician . . . in the discharge or attempt to discharge any duty of his or her office or employment….” In other words, what most states call “Obstruction of Justice,” California includes as part of the crime “Resisting Arrest.”
So was Ms. Tillotson “resisting arrest?” First we have to know whether the police officers were “lawfully performing” their duties. As discussed above, this depends on (1) whether they actually seized the suspect; and (2) if so, whether they had reasonable suspicion that he was involved in criminal activity. If the police officers were illegally seizing the suspect, then there is no way the public defender could have been committing a crime by intervening. However, if the suspect had not been “seized,” or if the police had the right to seize him, then we need to ask whether the public defender was willfully delaying or obstructing the police officer’s actions. This seems to be a relatively easy element to prove. She was both delaying and obstructing the police officers from taking photographs and asking questions from the suspect, and her actions were certainly “willful”–she acted with the purpose of preventing the police officers from carrying out their duty.
Although this is a reasonable interpretation of the statute, its application in this context is worrisome, to say the least. Ms. Tillotson may not have had the right to interfere with the police investigation in this instance, but there is a strong public policy argument for giving defense attorneys wide latitude in these situations. As noted above, if the public defender had merely advised the suspect to walk away from the photo shoot and to refuse to answer questions, she would have merely been giving good advice to the suspect–in fact, she would have been doing her duty as the suspect’s attorney by protecting his rights. If she instead confronts the police (peacefully), tells them to cease their activities, and blocks their attempts to take a photo, has she really crossed the line from dutiful advocate into obstructer of justice?
And so in the end, the legal analysis brings us back to the same equitable considerations that we started with. It is certainly feasible that under a technical reading of the law, the public defender overstepped her bounds and the police had the legal authority to arrest her. But even if the police could win the legal battle, they are certain to lose the broader war. Given the inevitable (and easily foreseen) political and public relations disaster that the police are now facing, it is inconceivable that the need to take photos of this suspect was worth the repercussions that the police department will now face. Police officers have to remember: it is 2015; cameras are everywhere, and videos go viral.