Visible Policing: Technology, Transparency, and Democratic Control

Authors

Hannah Bloch-Wehba, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

6-2021

Journal Title

California Law Review

ISSN

0008-1221

DOI

10.15779/Z38NS0KZ51

Abstract

Law enforcement has an opacity problem. Police use sophisticated technologies to monitor individuals, surveil communities, and predict behaviors in increasingly intrusive ways. But legal institutions have struggled to understand—let alone set limits on—new investigative methods and techniques for two major reasons. First, new surveillance technology tends to operate in opaque and unaccountable ways, augmenting police power while remaining free of meaningful oversight. Second, shifts in Fourth Amendment doctrine have expanded law enforcement’s ability to engage in surveillance relatively free of scrutiny by courts or by the public. The result is that modern policing is not highly visible to oversight institutions or the public and is becoming even less so.

In light of these informational dynamics, transparency litigation has become a core technique for rendering obscure investigative practices visible and holding police accountable. These new lawsuits form a criminal procedure “shadow docket”—they resolve important questions about democratic governance of policing without deciding on the constitutionality of searches and seizures. This Article builds on the government secrecy literature to explore the significance of this “shadow docket” and the relationship between transparency obligations and constitutional limits on police action. In the absence of meaningful Fourth Amendment safeguards, transparency litigation makes policing practices increasingly visible to the public and democratic institutions in areas where constitutional criminal procedure today has minimal reach. These efforts to make policing visible bear important lessons for advocates and scholars of criminal procedure, criminal justice reform, and transparency itself.

First Page

917

Last Page

978

Num Pages

62

Volume Number

109

Issue Number

3

Publisher

University of California Berkeley School of Law

Recommended Citation

Hannah Bloch-Wehba, Visible Policing: Technology, Transparency, and Democratic Control, 109 Calif. L. Rev. 917 (2021).
Available at: https://scholarship.law.tamu.edu/facscholar/1503

File Type

PDF