Law Enforcement’s Lobbying Priority In States Is Fighting Transparency

The ACLU has been working in states across the country on a variety of laws pertaining to law enforcement agencies and their power to gather and access information about us—including location tracking, drones, automatic license plate readers, and access to our electronic communications content. From my vantage point in the ACLU national office working with our state affiliates to advance legislation, I have a unique view of legislative battles taking place across the nation. And what I have seen is that regardless of the issue or the state, there has been one common theme in law enforcement opposition to the bills: they don’t want you to know what they’re doing.

With a few exceptions, the ideal bills on these topics follow a similar format:

  • They contain legal protections, and require court oversight, when law enforcement wishes to use the technology in question in a criminal investigation.
  • They contain notice requirements so that you are informed if police search your digital property, just as you would be informed if they search your physical property.
  • They contain reporting requirements so that the public and the legislature can know how much a tactic is being used and how the new rules work in practice and can determine whether further tweaks to the law are needed.

We have seen in state after state that, thanks to law enforcement pressure, the first two issues that get traded away during legislative negotiations—or never included in draft bills in the first place—are the notice requirements and the reporting requirements. Let me underscore that point: law enforcement agencies seem to resist notice and reporting requirements more stringently than they fight court oversight and legal standards.

In Colorado, for example, we were informed that notice and reporting requirements were a non-starter for law enforcement and would be excluded from the location tracking legislation that recently passed the state Senate. In Maine, law enforcement lobbyists convinced lawmakers working on location tracking legislation to allow police to request a court order waiving the notice requirement in the law all together. Of the six location tracking bills that became law so far in the last two years, only two contain reporting requirements. Only four of the twelve new drones laws require reporting, and none (!) of the new laws governing law enforcement access to electronic communications content contains any reporting requirements whatsoever.

Let’s be clear about the stakes. Reporting and notice are, by and large, not hard. But, without them, it is very difficult to know how often law enforcement agencies are using a particular tactic—and how often they’re obtaining the personal information of innocent people against whom charges are never brought. Absent notice and reporting, it’s also hard to know whether law enforcement is complying with the legal requirements and court oversight enshrined in these new laws. And perhaps that’s the point.

The reality is that many law enforcement agencies already require internal reporting on their practices. It is hard to believe that it’s much more of a burden to compile those reports for legislators, courts, and/or the public.

With regard to notice, law enforcement agencies argue that it would be difficult or prohibitively expensive to identify everyone whose information is obtained. That’s just not true. For example, where law enforcement uses cell phone location tracking, even in “tower dumps” (where they obtain the location information of every phone that connects to a particular cell tower), they could easily text or call the numbers they identify. Where they obtain electronic communications content (or social media check-ins), there is likely an e-mail address, social networking account handle, or IP address associated with the content that could be used to identify and notify the individual(s) whose information is obtained.

And, the argument that notice might jeopardize criminal investigations is also empty. There are time-honored methods of delaying notice enshrined in current search and seizure law. Law enforcement can request a court order delaying notice of a search for various reasons (to avoid immediate danger to innocent people, a suspect’s flight from prosecution, a suspect’s destruction of evidence, witness intimidation, jeopardy to an investigation, or undue delays to a trial). There is no good reason to believe that the delayed notice that works in the offline world can’t work in the digital world as well.

So, let’s make the debate about the issue that’s really at stake: will there be transparency and oversight of police surveillance practices and informed public and legislative debate about those practices? Come on, law enforcement, if you’re doing nothing wrong, what do you have to hide?

Add a comment (5)
Read the Terms of Use


You are going after the "Wrong" target (police thugs).
The ACLU should be going after the Supreme Court for not stepping in and stopping this kind of unconstitutional, "Police Actions" against citizens that pay their taxes. (as well as their paychecks)
And you wonder why these groups want your weapons or make bogus laws that requires hours of checks and balances just to be able to retrieve your weapon while a crime was being committed and by the time you were able to defend yourself, the criminal is long gone and now on vacation with your ID.. credit cards and personal positions.. (sounds like the current government)
The real criminals here are the elected servants that are supposed to be their citizens first line of defense against a, "Police State".
Where did our freedoms go and who took them away, because we all know the, why.
Do your job and sue the Supreme Court for lack of, "Intelligence"


Do as I say, not as I do. More of the same, nothing new.


ACLU in Seattle is a joke. I went to their offices for help when I was brutally and WRONGFULLY arrested because of the dispatchers mistake. I am a handicapped senior citizen who had heart surgery 8 months prior to horrific police mistreatment. I have never been arrested before but while looking for my missing daughter, dispatcher reported I had a gun & was going to kill people. I don't own a gun, am afraid of guns. Police threw me to ground, assault rifle to my head, threatening to taz me. I have PTSD now because of this. I tried to get ACLU to help me but was told their office is small & only 1 person to work there. This is SEATTLE, it's known to have MAJOR police issues here. Where is ACLU? They told me to contact WA lawyer referral. No help there as their are NO lawyers that are registered with ANY county that can practice in Federal court. I learned the hard way, that all police cases go from Superior court [6 person jury] to Federal court, so that they have the advantage of a 12 person jury & you can't get all 12 people to convict police. The police have the public sympathy, even though they are Bullies in Blue with Badges! I spent 4 years fighting pro se in Federal court as I couldn't find a lawyer that was licensed in Federal court, didn't have a conflict of interest or was willing to go against the police. I spent almost $200,000 dollars and will be losing my house, but I finally won my case 2 months ago. No thanks to ACLU!


I hate to say it but I can't believe anyone who works in one part of the law doesn't know why another part might need to keep an investigation less than transparent, especially from the person they finally question. I watch 'The First 48' all the time, because someone in my family was murdered (still unsolved, will always be that way) and I wanted to know how they conduct their investigations.
Even when they have a suspect 'dead to rights' so to speak, these people lie through their gutless wonder cowardly teeth. One guy they questioned had a whole damn MOUNTAIN of evidence on him and he said he didn't do it right up to the end. He never DID admit it. He even threw in a holier-than-thou pig-slop statement like "God knows I'm innocent and I'll never feel bad saying I am."
Well, until they found enough probable cause on him, they had to treat him as if he were TECHNICALLY innocent. Point being, how are they supposed to GATHER any evidence when EVERYone's innocent until you FIND things that give probable cause?
Besides that, if any of this transparency is the reason our case is still unsolved I'll be outrageously furious. I'm tired of people being fair-minded to ONLY the suspect in all these situations.
I'm sick of the alleged criminal and then the ACTUAL criminal being treated like the wounded heroic person of the day around here.



Sign Up for Breaking News