Visible Policing: Technology, Transparency, and Democratic Control

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. New technologies of surveillance, often procured from or otherwise reliant on the private sector, tend to operate in opaque and unaccountable ways, augmenting police power while remaining free of meaningful oversight. At the same time, shifts in Fourth Amendment doctrine have expanded law enforcement’s ability to engage in surveillance free of oversight or scrutiny by courts or by the public. The result is that modern policing is not highly visible to oversight institutions, 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, the Article shows, transparency makes policing practices increasingly visible to the public and to democratic institutions in areas in which 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.