Russian Journal of Economics and Law (Mar 2019)
Policing, databases, and surveillance
Abstract
Objective: to elaborate legal recommendations concerning the access of law enforcement bodies to data bases.Methods: dialectical approach to cognition of social phenomena, allowing to analyze them in historical development and functioning in the context of the totality of objective and subjective factors, predetermined the following research methods: formal-logical, comparative-legal, and others.Results: Databases are full of personal information that law enforcement might find useful. Government access to these databases can be divided into five categories: suspect-driven; profile-driven; event-driven; program-driven and volunteer-driven. This chapter recommends that, in addition to any restrictions imposed by the Fourth Amendment (which currently are minimal), each type of access should be subject to its own regulatory regime. Suspect-driven access should depend on justification proportionate to the intrusion. Profile-driven access should likewise abide by a proportionality principle but should also be subject to transparency, vetting, and universality restrictions. Event-driven access should be cabined by the time and place of the event. Program-driven access should be authorized by legislation and by regulations publicly arrived-at and evenly applied. Information maintained by institutional fiduciaries should not be volunteered unless necessary to forestall an ongoing or imminent serious wrong.Scientific novelty: the article suggests the following recommendations on the access of law enforcement bodies to data bases: a) if a policing agency seeks non-public records about an identified person, it should have to demonstrate suspicion of wrongdoing proportionate to the intrusion involved; b) if a law enforcement agency is accessing data for the purpose of executing a profile to identify suspects, it should ensure the profile produces the requisite proportionality - derived hit rate, avoids illegitimate discrimination, and uses an understandable algorithm; c) if policing agencies are relying on a crime rather than a suspect or a profile as the starting point of the investigation, the crime should be serious and the number of people investigated kept to the minimum dictated by the time and place of the crime; d) collections of data needed by law enforcement should be maintained outside of government to the extent consistent with governing needs, but wherever maintained they should be authorized by specific legislation and administrative rules transparently and democratically arrived at. Practical significance: the main provisions and conclusions of the article can be used in scientific and educational activities while consideration the issues related to identification, suppression and prevention of crimes.
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