Critics of privacy advocates like to chide them for using dystopian films like “Minority Report” to forecast where government use of technology is headed. The 2002 Tom Cruise movie depicts a future when a strange race of beings called “Pre-Cogs” see the future and send police to arrest would-be offenders before a crime is committed.
However, just this week, it was reported that a Florida sheriff attempted to do something very similar, using an algorithm to predict likely criminals and send officers to question and even arrest people based on those predictions. What before was considered science fiction has become reality.
The tension around privacy is heightened when the public is unaware that such tools are even being used — as evidenced by last year’s revelation that the state has been conducting facial recognition scans daily on Utahns, including minors, for about a decade.
When new tools change the relationship between people and their government, the public should have a say in the matter. Consequently, the Legislature needs to establish a process whereby new technologies that can undermine our privacy have public buy-in, transparency for how they are used, and accountability for when they are misused.
Technology can obviously be a powerful tool that is useful for law enforcement officers trying to solve a crime. However, like any newly introduced technology, there can be hiccups along the way.
For example, artificial intelligence systems face the issue of bias. Since the ability of software to make decisions is heavily reliant on the information it is fed, obtaining the wrong photos or scanning the wrong data can lead to problematic results. Like any software, artificial intelligence systems can trigger false positives that claim a match where none exists, focusing the government’s heavy hand on a person who is innocent.
The explosion in DNA data offers another cautionary tale. From tracing ethnic backgrounds to establishing family trees and identifying health issues, DNA can provide the government a wide range of information that is extraordinarily private. Yet, law enforcement utilizes new DNA technology, without any law governing the process, that lets officers search through massive DNA databases in search of suspects.
Take the example of Michael Usry Jr., who was arrested and accused of murder. His father had submitted DNA through a project sponsored by The Church of Jesus Christ of Latter-day Saints, with the project and its data later being acquired by Ancestry.com. The company was ordered to provide information about the DNA to police, which led them to Usry. After weeks of accusations and investigation, his name was cleared and law enforcement moved on — but not after another person’s life had been interrupted and harmed because of a new technology directing law enforcement’s attention and resources in improper ways, without regulation or oversight.
Utah’s recent experience with Banjo offers yet another unfortunate example. The secretive company — which boasted the ability to listen to 911 calls, scan social media posts, monitor traffic cameras, track the location of police cars and more — obtained government contracts to empower law enforcement to solve crime more quickly. But no conversation was had about this company’s technology or government’s increasing ability to surveil individuals before signing such contracts. Only later, when the company’s founder was revealed to have former ties to the Ku Klux Klan, did sufficient public attention pressure law enforcement to sever ties.
While some advocates might argue that these issues should be ironed out in the courts, that may not be the best route. It often takes years for the courts to address any of these questions and, even at that rate, their solutions are not always consistent. As Justice Samuel Alito said, “[Courts] are very ill-positioned to make these determinations…. We are not up on all the latest technology. If privacy is to be protected in the future… state legislatures should take the lead.”
The question becomes: How do we strike the right balance between using powerful new technologies to catch criminals while protecting our constitutional rights? The Legislature is in the best position to establish guidelines to include the public in the process of integrating new technologies while safeguarding privacy. The government should not be able to acquire whatever new technology it wants until courts, years later, put guardrails around its use. Elected officials need to step up and put in place a process to proactively protect our rights.
In the upcoming session, legislators will consider the Privacy Protection Act, a process that aims to strike the balance between law enforcement being able to do their jobs while simultaneously preventing a “Minority Report” future in which individual rights are cast aside. It is time for Utah to be a leader in rectifying past failures and empowering individuals to have a voice in how these tools and technologies are used, if at all.
Connor Boyack is president of Libertas Institute, a free-market think tank in Utah.
James Czerniawski is the institute’s tech and innovation policy analyst.