Data & Society

Exposing Police Misconduct Data in the Era of Digital Privacy Concerns

Episode Summary

This past year, 2018-2019 Data & Society Fellow Cynthia Conti-Cook tackled an aspect of the criminal justice system lacking data: police misconduct. Her talk explores how this data gap came to be through police union claims to the Right to be Forgotten. This raises important lessons about how government actors exploit privacy rhetoric to cover up rights violations. Cynthia Conti-Cook is a staff attorney at the New York City’s Legal Aid Society, Special Litigation Unit, where she oversees the Cop Accountability Project and Database, leads impact litigation and law reform projects on issues involving policing, data collection, risk assessment instruments, and the criminal justice system generally. She has presented as a panelist and trainer at many national, New York state, and New York City venues on topics of police misconduct, technology in the criminal justice system, and risk assessment instruments.

Episode Notes

This past year, 2018-2019 Data & Society Fellow Cynthia Conti-Cook tackled an aspect of the criminal justice system lacking data: police misconduct. Her talk explores how this data gap came to be through police union claims to the Right to be Forgotten. This raises important lessons about how government actors exploit privacy rhetoric to cover up rights violations.

Cynthia Conti-Cook is a staff attorney at the New York City’s Legal Aid Society, Special Litigation Unit, where she oversees the Cop Accountability Project and Database, leads impact litigation and law reform projects on issues involving policing, data collection, risk assessment instruments, and the criminal justice system generally. She has presented as a panelist and trainer at many national, New York state, and New York City venues on topics of police misconduct, technology in the criminal justice system, and risk assessment instruments.

Episode Transcription

Rebecca Wexler:     
Welcome to Data and Society. My name is Rebecca Wexler, I'm a former fellow here and a current affiliate. I work on data technology and criminal justice issues. It's my pleasure and honor to welcome you here for the final night of three Wednesdays where we're featuring this year's cohort of fellows to talk about their work. So, next we're going to have to Cynthia Conti-Cook and her talk is called “Hidden Misconduct: Police Data Protection in the United States.”

Rebecca Wexler:     
Cynthia is a staff attorney, at New York City's Legal Aid Society's Special Litigation Unit where she oversees the Cop Accountability Project and database, leads impact litigation and reform projects on issues that involve policing, data collection, risk assessment instruments, the criminal justice system generally, as well as supporting the legal aid staff in their trial offices on their cases. She's also my former supervisor. Take it away Cynthia.

Cynthia Conti-Cook:    
Good afternoon everyone. Thank you for coming. Thank you to Data & Society and to everyone that helps put this event together and helped us all meet our deadlines patiently. My year has focused here at Data & Society, on a high level on how data tools and technology are changing the criminal justice system, whether through the introduction of risk assessment instruments, through studying the procurement of private technology used in policing and prosecutions, or the sophisticated military grade surveillance technologies that are used in public and digital spaces by police.

Cynthia:    
The majority of my research this past year focused on an aspect of the criminal justice system that for a long time really has lacked data, and that is police misconduct. My talk today will explore how this data gap came to be and how police unions have long made claim to the Right to be Forgotten regarding their misconduct data, decades before the GDPR was passed in Europe. This raises important lessons for us about how government actors have exploited privacy rhetoric to cover up human rights violations.

Cynthia:    
Now the European flag. When the Right to be Forgotten was accepted by the European Court of Justice in 2014, many categorically denied whether such a concept might make its way to America. There were a lot of headlines like this that Americans don't have that option because they said, the first amendment and its protection of the freedom of speech and the role we think it plays in our informed democracy will prevent that. A “Time” article even declared, Americans will never have a Right to be Forgotten because as one person who was interviewed was quoted to say, "In the US free speech sort of trumps privacy”.

Cynthia:    
Takeaways from these conclusions are seemingly two-fold. One, that the freedom to access information in America is more important than in other countries and that in America, people are more exposed because they have little recourse when their prior bad acts are reported. But at least one scholar, Professor Amy Gajda in a 2017 article, “Privacy, Press and the Right to be Forgotten in the U.S.” really challenges both of those conclusions. In her article, she states that the Right to be Forgotten has actually been on U.S. shores for centuries...and she walks through a number of cases where courts have weighed privacy interests against press interests and decided that privacy wins out. She dates these cases as far back as 1890.

Cynthia:    
Where my research comes into it is that, my research is about information protection statutes and policies, pushed by police unions across the United States for the past five decades, and that police officers, more than any other public servant have established confidentiality statuses for their prior misconduct information so that it never even hits private papers, news articles, the internet, in the first place. So to the extent that the first amendment protects prior misconduct from being erased in the United States, it certainly hasn't stopped our own government actors from erasing their own misconduct data from public consciousness. This has caused a large data gap between police misconduct and the potential heavily data driven police reforms that could be based on data of police misconduct. This is in a system where criminal justice statistics, risk assessment instruments, and other data driven tools are really being introduced into the system at an alarming speed.

Cynthia:    
It's this background of a country that believes it's elevated access to information above privacy rights [...] in the criminal justice system at large, is collecting and using criminal justice data in a thousand new ways. And [my] research into police misconduct information [stands] in contrast to that. It's collection and access, lack of access really, and how we understand it. Police rely on privacy rhetoric to make these arguments, despite multiple court decisions that have consistently rejected the idea that on duty misconduct could ever be considered private. This privacy rhetoric ramped up in the 60s and the 70s with freedom of information laws as they began to be introduced, as well as when police officers first started to unionize.

Cynthia:    
Their first major legislative effort was actually called the Police Officer Bill of Rights and that included sealing expungement and privacy rights for their misconduct information histories, and New York State's civil rights law 50A was one of their first wins. It was passed in 1976. One researcher even recently argued that sharing police misconduct information with the public violates officer privacy and causes unfair reputational damage to them. Police have done an amazing PR job of building on this aura of privacy rights around their misconduct information.

Cynthia:   
I wrote a response to this argument, published this winter, with my alma mater CUNY Law, where I researched how police unions and representatives have articulated their privacy rights. At Data & Society we have a lot of conversations about what digital privacy means and about how it's not just about what we as individuals do, but about how we interconnect with our network and how our digital privacy is only really as protected as our network is, let me tell you, police have excelled at this type of rhetoric and have really taken that ball and ran with it.

Cynthia:    
It's exactly the types of arguments that they make. In California an officer said that maintaining confidentiality of misconduct records best serves the important policy goal of maintaining confidence in law enforcement. The Sergeant Benevolent Association President Ed Mullins put an even finer point on it last April with this opinion piece in the New York Post where he described 50A as having been enacted in recognition of the unique nature of the work of law enforcement professionals and first responders who risk their lives daily for the common good and this is the most important part, and who can't do their job without the community support. What the union is claiming there, is that the public is safer being in the dark about police misconduct information because it's dangerous for the public to question or doubt or distrust government authority.

Cynthia:    
This is not actually about privacy at all. It's about preserving the state power of anonymity and their ability to commit misconduct and remain faceless or nameless. The police are quick to weaponize misconduct on the other hand. Eric Garner who was killed by Daniel Pantaleo five years ago, in a choke hold, wasn't dead for 24 hours before his sealed arrest history, theoretically protected by a different privacy statute, was all over the internet. But when we sued Daniel Pantaleo for his misconduct history, we sued the civilian complaint board for his misconduct history, the city fought us. We won initially, but they appealed and we lost under appeal because of state law 50A. Because of 50A, Pantaleo can confidently believe that no matter what the outcome of the administrative trial is that he is currently facing, it's concluded just recently, there will be no official record of it available publicly, absent any leak. The mother of Eric Garner, who sat through every day of that trial, does not know today if she will ever learn what actually happened.

Cynthia:    
So the Right to be Forgotten has been weaponized as early as 1976 by public officials in New York State to cover up their misconduct in the name of privacy rights. As we participate in conversations about this right, we should consider who has the resources to fight for their records to be erased and how the disparities of those resources will leave some of our histories appearing spotless, while others with less will struggle to escape the risk scores, gang database entries, and rap sheets that will follow them through life.

Cynthia:    
So what are we doing about it? We're definitely, in Albany, fighting for [the] repeal of state law 50A. California successfully passed a law that allowed more public access to it's police misconduct information, but only for certain categories and in many other states, there are similar laws and we are trying to look to creating a broader legislative effort towards changing those. We're also trying to raise more public awareness around this issue. The New York Times did an editorial last week supporting [the] full repeal of 50A, but in the meantime, my work is focused on how to fill these data gaps without waiting for the government to give us access to information about their own misconduct.

Cynthia:    
Several databases have been curated by non-governmental groups and were featured in this article in Undark Magazine, two weeks ago, maybe. The Legal Aid Society, where I work, rolled out a defender database in 2016 joining one other public database of internal records from Chicago's Invisible Institute that was released in 2015. In our defender database, we took information from our cases, from public sources like lawsuit databases, news sites, and payroll information and we used it to create officer profiles for our attorneys to search. Then, following Invisible Institutes lead in March 2019, we rolled out a public version of our database using only...publicly available sources...that focused mostly on federal civil rights lawsuit data for a three year period.

Cynthia:    
Our website allows viewers to search through lawsuits by patterns of misconduct, the type of force used, the type of abusive language, criminal charges that the people were falsely accused of and other types of aspects of each case. You can look locally at law suits filed in specific precincts to understand what is happening in a very specific geographic area and of course it allows people to look up officer misconduct profiles. A social network analysis adds these three dimensions together, giving users the ability to understand what a PBS study actually just revealed that officer misconduct tends to spread like contagion.

Cynthia:    
Up next, we hope to extend the capacity of defender organizations to host and maintain defender databases, as well as starting up public websites with the data they collect from public sources. The starred states on this map are places we've already begun conversations with defender and civil rights organizations around new databases and we hope these efforts will fuel a national effort to push changes into the laws, policies and norms and afford greater transparency of police misconduct records and support a truly informed democracy.