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New technologies are transforming the capabilities of law enforcement. Police agencies now have devices to track our cellphones and software to hack our networks. They have tools to sift the vast quantities of digital silt we leave behind on the Internet. They can deploy “big data” algorithms meant to predict where crimes will occur and who will commit them. They have even transformed the humble closed-circuit video camera—and its more recent companion, the body camera—into biometric tracking devices equipped with artificial intelligence meant to pick faces out of a crowd and, eventually, to mine gigabytes of stored footage to automatically reconstruct the movements of their targets.

These kinds of novel police technologies test the constitutional limits on surveillance and raise profound questions about privacy, personal freedom, and potential abuse. Yet the government shrouds them in secrecy. Even as new surveillance tools transform the relationship between people and the police, the public is often left in the dark about how police use these tools and the rules, if any, that govern them. What justifies this secrecy?

This Article examines the primary argument offered by law enforcement in the United States: that disclosure of police technologies would allow criminals to evade the law. Without secrecy, the argument goes, criminals could circumvent law enforcement’s tools, crime would go undetected, and society would suffer the consequences. I call this the anti-circumvention argument for secrecy. This Article is the first to examine it.

The Article contends that the anti-circumvention argument, as currently implemented in law, is producing far more secrecy than it can justify, and that it is doing so at the expense of democratic checks, public accountability, and perhaps law enforcement itself. The Article proposes specific reforms to circumscribe laws that currently authorize excessive secrecy in the name of preventing evasion. The Article also proposes structural changes to require police to publish information about novel technologies for public notice and comment, in order to allow meaningful democratic deliberation as we enter the age of digital policing.

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Berkeley Technology Law Journal

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