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

FIle Type

PDF

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.