The future of policing will be driven by data. Crime, criminals, and patterns of criminal activity will be reduced to data to be studied, crunched, and predicted. The benefits of big data policing involve smarter policing, faster investigation, predictive deterrence, and the ability to visualize crime problems in new ways. Not surprisingly then, police administrators have been seeking out new partnerships with sophisticated private data companies and experimenting with new surveillance technologies. This potential future, however, has a very present limitation. It is a limitation largely ignored by adopting jurisdictions and could, if left unaddressed, delegitimize the adoption and use of new data-driven technologies. Simply put: all big data policing technologies have a “black data” problem. “Black data” connotes three overlapping concerns. First, big data policing is opaque, lacking transparency because most of the magic happens as a result of “black box” proprietary and mathematically complex algorithms. Second, big data policing is racially encoded, colored by the history of real-world policing that disproportionality impacts communities of color. Finally, big data policing faces legal uncertainty as old constitutional doctrines built on small data principles no longer work in the new big data age. The future path of traditional Fourth Amendment law is uncertain, dark, and distorted. This brief essay, part of a symposium at Ohio State Law School on Criminal Law, Big Data, and the Promotion of Justice, seeks to raise the questions that must be resolved to overcome the black data problem. This symposium essay examines: (1) the puzzle of data-driven transparency; (2) the concern of biased data; and (3) the struggle for constitutional clarity in the face of new technologies.
Illuminating Black Data Policing,
Ohio State Journal of Criminal Law, Forthcoming
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/745