April 6, 2023
Secrets & Suspicionless Policing: A Fundamentally Anti-Democratic Mix
Professor of Law at Michigan State University
Years of human rights work taught me that democracy thrives only where formal legal guidelines both enable and restrain government power. The constitutional regulation of police investigation makes clear our shared commitment to restraint in this sphere. The Fourth Amendment simultaneously upholds the value of transparent police access to evidence in facilitating investigations and the important check on that access that warrants—based on actual evidence—play. These dual principles help maintain a reasonable balance of power.
By default, police searches that invade our reasonable expectations of privacy must be based on probable cause, which in turn requires sufficient evidence to convince a reasonable person that evidence of a crime is likely to be found. Such restraints form a necessary precondition to a healthy democracy.
Police investigation without individualized suspicion or particularized evidence necessarily begins outside these recognized bounds of reasonable investigation. The Supreme Court determined that the Fourth Amendment permits these searches only so long as they are reasonably necessary to further important law-enforcement or regulatory objectives.
The American Law Institute’s recently approved Principles of the Law: Policing (ALI Principles) dedicate an entire chapter, Chapter 5, to special concerns that arise in policing that takes place in the absence of individualized suspicion. Chapter 5’s third principle emphasizes that suspicionless policing activities should be authorized only “when there is a sound basis for believing that they will accomplish an important law-enforcement or regulatory objective” (§5.03) and that the term of any authorization should be finite (§5.02(f)).
New Jersey’s Regional Operations Intelligence Center’s (NJ ROIC) operates out of the state’s Office of Homeland Security and Preparedness, a cabinet-level agency created by executive order in 2006. It has grown to approximately 100 staff members. NJ ROIC’s pervasive invisible security and surveillance network, as documented in Rutgers School of Law’s Center for Security, Race, and Right’s (CSRR) new report New Jersey’s Secret State Intelligence System, operates in this exceptional space seemingly without written objectives or clear end dates.
NJ ROIC originally emerged to enhance inter-agency cooperation and protect national security in the wake of 9/11. These early ambitions gave way to networked policing of low-level drug offenders and parole violators through mass warrants sweeps engaging local, state, and federal law enforcement agencies. The racist impact of this kind of policing has been documented again and again across the country. The ALI Principles caution that suspicionless policing should not be permitted to exceed the scope of the identified law-enforcement or regulatory objective because doing so undermines the legitimacy of law-enforcement agencies (§5.06).
Panoptical surveillance like the sort conducted under NJ ROIC’s auspices necessarily infringes our shared expectations of privacy, and potentially enables unchecked and uncheckable government overreach. These are precisely the dangers the Supreme Court sought to minimize by imposing limits on their use. I saw the costs of unchecked government power too clearly in my human rights work where courts lacked the power to enforce the rule of law against a strong executive with powerful police.
My clients, university students, endured months in jail even after the court ordered them released. The students had been charged on very thin evidence with organizing and supporting a violent attack. They were caught in a general sweep of members from one of the student council alliances. We see similar risks in this country as data-intensive surveillance practices, including data collection, predictive analytics, and surveillance, enhance the power of the executive branch without judicial oversight or authority.
Written public policies can stand in for individualized suspicion and limit the scope and purpose of suspicionless surveillance programs. Policy development can even provide an opportunity for democratic engagement and richer vetting of the palpable threat to privacy surveillance systems pose. On the other hand, secrecy over the scope and implementation of surveillance programs preclude oversight, restraint, or public participation.
The CSRR report demonstrates that New Jersey has chosen secrecy over transparency or democratic engagement. CSRR undertook extensive and unsuccessful efforts to obtain and review NJ ROIC’s governing policies. The New Jersey Open Public Records Act proved almost entirely useless as a tool of engagement.
State leaders would do well to follow the modest proposals advanced by CSRR, proposals that balance government interests in safety and security with the need for public review and clear boundaries that limit the reach and ensure neutral criteria for engagement. These include holding legislative hearings, appointing an ombudsman to oversee the fusion center, and engaging the public to participate in this important discussion. Legislative hearings provide a forum at which to examine the NJ ROIC policies, practices, and procedures through a transparent process. This process should include opportunities for public participation. An ombudsman serves as a neutral insider, able to advance public understanding of the impact of these NJ ROIC policies and practices on civil liberties. Public engagement can bring firsthand knowledge of the experience of being policed and surveilled in this manner. Reforms that reject secrecy and welcome written objective-limited guidelines can start to bring NJ ROIC back into the realm of democratic restraint.
Catherine M. Grosso is a Professor of Law at Michigan State University.