Dye in the Cracks: The Limits of Legal Frameworks Governing Police Use of Big Data

Computational procedures increasingly inform how we work, communicate, and make decisions, raising sociolegal questions about how data are used by police and what the consequences are for laws governing police activity. Legal scholars have begun analyzing the implications of big data policing, yet their work to date is largely theoretical. In this article, I draw on ethnographic fieldwork conducted with the Los Angeles Police Department (“LAPD”) to ground legal debates about police use of big data in empirical detail. The article opens with a brief description of the fieldwork and findings on how the police use big data for dragnet and directed surveillance. I then identify four ways legal frameworks are overlooking the social side of big data. First, the way the conceptual categories that underpin legal doctrine—like individualized suspicion—are deployed and organized to make normative assessments do not reflect how decision-making plays out on the ground. Second, police are not simply scaling up data collection in the digital age; rather, different kinds of data are being produced. Despite the fact that there is a difference in kind—rather than just degree—old legal doctrine is still being laid on top of these data. Third, relying on extant legal mechanisms like the exclusionary rule means using what is meant to be a check on state power at one point in time and space, whereas data is fundamentally social and, as such, has a life course. Fourth, unfettered big data policing creates new opportunities for information asymmetries and can threaten due process through parallel construction