Can You Hear Us Now?: Communications Policy and the Criminal Justice System

by Joseph Miller, Esq.

Talk about convergence.  Not only has the Internet changed the way Americans consume content, it is also changing the criminal justice system.

The United States has the highest incarceration rate in the world.  According to the 33-country Organisation for Economic Co-operation and Development (OECD), the U.S. incarceration rate is 760 prisoners per 100,000 population.  Only 3 of the remaining OECD countries have incarceration rates above 250 per 100,000. These include Israel (325 per 100,000), Chile (317 per 100,000) and Estonia (273 per 100,000).  African-American and Hispanic men (3,074 per 100,000 and 1,258 per 100,000, respectively) comprise a disproportionate share of American prisoners, compared to just 459 per 100,000 of white men.

Policymakers should continue to monitor how the ways law enforcement officers use technology may perpetuate flaws in the criminal justice system.  Several developments over the past month shed light on these considerations.


The Fourth Amendment states “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” The warrant requirement for law enforcement officers conducting investigations in the physical world is well settled, even as the law surrounding exceptions to the warrant requirement is more complex. However, the extent of Fourth Amendment protection online and on devices is murkier.

The New York Times published an article discussing the patchwork of confusing, and often contradictory, laws around the country governing law enforcement’s warrantless use of cell phone data, including New York City’s practice of keeping cell phone theft victims’ phone data beyond the data need to investigate and prosecute the theft.  The New York City Police Department is also notorious for its “Stop and Frisk” practices.  According to the New York Civil Liberties Union, black and Latino New York residents “made up close to 90 percent of people stopped and about 88 percent of those stops were of innocent New Yorkers.”

To address the challenges of privacy and Fourth Amendment policy in the digital age, policymakers are considering legislation to amend the Electronic Communications Privacy Act (ECPA). ECPA, enacted in 1986, was designed to restrict the ability of the federal government to use computer data and stored electronic communications in investigations.  But ECPA currently requires no probable cause and no warrants for law enforcement to obtain things like stored photographs, data from Facebook pages, and draft documents shared with third parties like Dropbox and Google.

On Thursday, the Senate Judiciary Committee approved an amendment to ECPA that would require police to obtain a warrant before searching suspects’ emails.  The Senate is not anticipated to vote on the ECPA amendment until next year, but this is important progress toward ensuring the Fourth Amendment warrant requirement applies to data and devices.

Recording Police Activity

The past month has also seen an important development in the role personal audiovisual recordings might play in documenting police misconduct.

On Monday, the Supreme Court declined to review a Seventh Circuit ruling that the First Amendment includes the right to record the actions of police officers while they are on duty and in public. Illinois’ eavesdropping law had made recording police officers a felony punishable by up to 15 years in prison. The Seventh Circuit held that “the act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as corollary of the right to disseminate the resulting recording.”

Earlier this year, the City of Boston agreed to pay $170,000 in damages and legal fees to a man, Simon Glick, who was arrested for recording police officers in public. The settlement followed a First Circuit Court of Appeals unanimous ruling that Glick had a “constitutionally protected right to videotape police carrying out their duties in public.”

Prison Phone

Prison Phone Justice

The families of inmates are silent victims.  Incarceration removes a reliable source of household income and separates parents from their children.  One aspect of the effect of incarceration on families is the stratospheric rates telephone companies charge for collect calls made by inmates.

One study conducted by the Southern Poverty Law Center of prison phone rates in Louisiana  found these fees to be 15 times higher (30 cents per minute versus 2 cents per minute) than they are for collect calls made outside prison walls.  In September, FCC Commissioner Clyburn urged FCC Chairman Genachowski to cut prison phone rates. On November 15th, the FCC announced at a rally led by the Center for Media Justice that it would seek public comment on prison phone rates.  Congressmen Henry Waxman (D-CA) and Bobby Rush (D-IL) attended a screening of a new film entitled “Middle of Nowhere” on the Hill earlier this week.  The film depicts the inner conflicts a mother encounters while her husband is serving an eight-year sentence.

Far too many people of color are in prisons in the United States. That makes the use of information and communications technology by law enforcement a matter of particular interest to people of color. The developments discussed here show policymakers taking constructive steps to improve how the criminal justice system uses technology. But information technology—and its uses—evolve rapidly, which means we need careful oversight of how these tools are used in the criminal justice system.

Joseph Miller, Esq., is Deputy Director and Senior Policy Counsel for the Media and Technology Institute at the Joint Center for Political and Economic Studies. More information on Mr. Miller and his work can be found at the Joint Center website.

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