In what ways might the technologisation of security present challenges to legal authority?

Technology plays a crucial role in the function of the Criminal Justice System. In some contexts, technology appears to have divined its own ‘regulatory’ power, one which extends beyond legal recourse. Society itself can be viewed as the docile body ‘that may be subjected, used, transformed and improved’ (Foucault, 1977, p.136). The reinforcement technology is twinned with punishment, ‘a primary means by which power is deployed, networked and regulated’ is a normative construct in the contemporary world (Thomas & Loader, 2000, p.22). Lawrence Lessig’s ‘Code and other laws of cyberspace’ argues that society is ‘regulated’ through: Social Norms; The Market and The Law. He stipulated a fourth ‘Code’ or ‘Architecture’ dictates that technology can shape behaviour in unprecedented ways in the computer environment. Further to this, Lessig begs the question, ‘How do we protect liberty when the architectures of control are managed as much by the government as by the private sector?’(Lessig, 1999, p.3). The ‘architectures of control’ implicitly refers to the alliance of power between cyberspace (including commerce) and the government. This is known as ‘technomia’, a reference which is a sound basis for exploring the concept that technology can be seen as an extension of the law, a discourse by which the law is governed.

The intention of this essay is to analyse popular technological securities and to explore their relationship to the Criminal Justice System. Questions to be raised within this essay include:

1. On what basis is ‘technomia’ legitimated?
2. What are the implications for justice?
3. Can technology be regulated equitably, with traditional judicial processes involving judges and juries?
4. And, is technology and its regulatory power distributed asymmetrically?

The initial part of this discussion briefly asks how technology has been legitimated as a doctrine of social control. Max Weber stated ‘instrumental’ rationality (dependent upon means-end goals) was beginning to dominate the social world. A critical component of this idea was the thinking we could make things ‘more efficient’, via the role of ‘technological norms’. In the sphere of law, Weber’s central theme of rationalisation altered the principle of legal judgements by creating a system of decision-making stipulated ‘on case precedent, universal legal principles and deductive reasoning based on facts related to the application of cases’ (Morrison, 2006, p.280). In other words, political and historical trends in law rely on calculation and technical knowledge to obtain rational control in the social world. Marcuse, in his book, ‘One Dimensional Man’, rationalised this further by arguing the modern world is now shaped and driven by ‘technological a priori’, one aspect of the regulatory power of technology [justification of technology in Criminal Justice founded of ‘efficiency’]. Bruno Latour also extrapolated on this term, using the ‘Berlin Key’ as an example of how technology ‘regulates’ public behaviour, in the absence of conventional agents.

There are several examples where technology occupies an important regulatory position. However, for the purposes of this paper, we will be exploring two particular technological securities:

1. Closed Circuit Television (CCTV); and
2. DNA Profiling.

Within these securities is usually the involvement of other professionals (e.g., CCTV operators), which alter the scientific validity of findings. Kovacich and Boni ,in their book, ‘High-Technology Crime Investigator’s Handbook: Working in the Global Information Environment’, have drawn attention to the fact prosecutors, judges and probation officers are faced with learning and adopting technology as a tool to assist them in ‘working in a more effective and efficient manner’ (2000, p.21). However, this in itself produces a catalogue of questions to be disseminated around the reliability of its use as evidence.

CCTV is a popular crime prevention and security measure adopted and installed in a range of public settings, e.g., car parks, city centres, and residential areas. According to the Home Office Research Study, ‘Assessing the impact of CCTV’, images can be stored and manipulated using different methods and thus creating implications for the application of this technology (Gill & Spriggs, 2005). One of the problematics of CCTV is whether the specification of a system can impact on its overall effectiveness (perhaps more so when we consider its specialised use in number plate and facial recognition). Technical considerations imply the need for experts to be consulted. Certainly, this means ensuring there is a consistent set of objectives marked against the actual technical specification.

Another query over CCTV as submission in court evidence, is with reference to the ‘control room’, that is the variables which exist as part of the rhetoric for assessing the environmental facets of CCTV operation. These ‘control rooms’ vary greatly with respect to monitoring, staff, management styles and how police communications are conducted. The effectiveness of CCTV for policing purposes remains questionable, although salient findings see CCTV as contextually more effective in eliciting positive influence on property crimes and vehicle thefts. Informal surveillance schemes, such as ‘Neighbourhood Watch’ for instance, increase security awareness and police reporting, but do not clearly determine reduction of crime (Brewer, 2000, p.78).

Despite the ethos that such situational measures can displace crime, there has been noted practical difficulties for using CCTV images in court: both police and parties involved in the prosecution of offenders suffering from information overload. The Turnbull Guidelines, introduced in 1977, by a judge who discovered visual identification can and has brought about miscarriages of justice – warned juries to exercise special care when relying on this type of evidence.

The precedence of technomia over law has been particularly evident in the courtroom. The use of ‘expert witnesses’ is littered with controversy and remains questionable in the delivery of justice. Studies show CCTV negates to receive the same accreditation as eyewitness testimony in the courts (Brewer, 2000, p.59). This is contrary to the fact psychological research has shown memory to be an active, constructive process and therefore inaccurate as a true record of events and people (Putwain & Sammons, 2000, p.128). In fact, some psychological experiments have shown CCTV to be as prone to error as traditional eyewitness evidence. Understanding how CCTV ‘works’ is then imperative to good practice. The Campbell Collaboration in turn have highlighted the failures of the system derived from a process and impact evaluation, taking account of various objectives and seeking to develop transferable lessons.

DNA Profiling similarly has uses, negative (for instance, to discriminate against employees who pose financial risk) and positive (such as identifying the assailant in rape cases) in society. This leads us to investigate whether genetic testing in Criminal Justice: through judicial servants and the courts, operates beyond the law. Are some procedures for obtaining DNA fallible by legal and scientific standards? (Miller, 1995).

There is evidence to indicate DNA Profiling is open to discrepancy and misinterpretation. For example, a correlation in DNA patterns which emerge from a crime scene and those taken from a suspect have been deemed sufficient for purposes of charging a person with an offence in spite of conflicting factors putting the evidence in question. Gareth Griffith and Lenny Roth in their briefing paper, ‘DNA Evidence, Wrongful Convictions and Wrongful Acquittals’, cite contamination [including lab error] and planting (or tampering of evidence) as to why ‘guilt beyond a reasonable doubt’ cannot be corroborated. Noted, is a 2003 report by the Australian Law Reform Commission stating the possibility of laboratory staff making ‘errors in conducting DNA analysis, in interpreting or reporting the results of the analysis, or in entering the resulting DNA profile into a DNA database system’. Failure to comply with established procedure, misjudgement by the scientist or any other pertinent oversight on the part of the professional destroys the safeguard of ‘expert’ evidence in court proceedings. Planting and tampering of evidence, ‘where the actual offender, a police investigator, or another person deliberately leaves a suspect’s genetic sample at a crime scene … to falsely implicate a suspect in the offence’ would have heinous repercussions for the legal authorities. The judiciary then should be aware of the nuances which underlie technological securities in crime control and punitive justice.

The Genetic Non-Discrimination Act (GINA) took precedence in 2008, a classic lesson in American politics – a statute legitimated to guard against genetic discrimination in health insurance and employment settings, with clauses to limit disclosure of this information. GINA concerns itself with genetic non-discrimination in the issue of health insurance and related companies (including those selling group policies to employers, non-group policies to individuals and families and Medicare supplemental policies to Medicare constituents). This means eligibility and, indeed, premiums for health insurance cover, are not subject to this information as a determinant of pre-existing medical conditions. However, GINA’s ban on genetic discrimination is not comprehensive – it does not apply to life, disability or long-term care insurances. Although GINA prohibits discrimination based on genotype, it does not do so based on phenotype. GINA applies to individuals who are asymptomatic – in a health insurance context it protects against genetic risk of disease but not if the disease is effectually contracted (Rothstein, 2011).

A US legal case in 2010 (Fink-v-MXenergy), was brought by Pamela Fink against her former employer after both her sisters developed breast cancer and she tested positive for the BRCA2 gene (associated with risk of breast cancer) – when she chose to undergo a double mastectomy. On returning to work post-surgery, Fink was made redundant, a decision she claimed was a direct result of genetic discrimination.

The controversy inherent in DNA Profiling sparked debate in the US court, culminating in the ‘Daubert Standard’, which subverted scientific assumption. This produced one answer to how the legal process should not become subordinate to the dictation of science and set legal criteria off against the ‘scientific’ claim. The ‘Daubert Standard’ was fostered from rulings made by the US Supreme Court over the admissibility of expert evidence [Daubert v. Merrell Dow Pharmaceuticals (92-102), 502 U.S. 579]. This ruling read any evidence with a ‘scientific’ basis should be privy to the following:

1. empirically testable
2. exposure to a process of peer review and publication
3. grounds for known or potential error
4. consideration it is acceptable to the cognate scientific community.

Daubert as a legal criterion for science still poses problems for the courts. Namely, the judicial authority is undermined by the necessity to consult scientists as to the scientific determination of the evidence. In conjunction, clear empirical testability for a theory is not always possible (perceptible in early Darwinism). Peer reviews cut across any guarantees of validity due to variation in standards, with the notion absolute error rates are clouded by misnomers (for instance, in issues surrounding fingerprinting).

So why the discrepancy and what are the implications? Technology in the Criminal Justice System is legitimated on the premise it is ‘scientific’. But how credible is this belief? An immediate difficulty is how science is defined. If technology is seen as an extension of the body (as Foucault suggested, one to be manipulated), then science itself can be perceived as an extension of knowledge. Therefore, science could be construed as a ‘technology’ and impossible to legitimate. Similarly, crime science has built a reputation as a legitimate approach in Criminal Justice. Such ‘scientific’ notions have laid claim to technological solutions being the fundamental resolve in managing crime. This approach subsequently has tended to acquire significant reprieve with government and policy makers. For example, the British government established the Crime Reduction Programme following the 1997 Comprehensive Spending Review. This scheme was legitimated on the premise it identified knowledge on what is effective in reducing crime, led by ‘the logic of problem-orientated policing in calling for evidence-based definitions of issues to be addressed, analysis of problems, the use of evidence in proposing responses, involvement of partnerships and systematic evaluation’ (Bullock & Tilley, 2003, p.11).

Others programmes/research proposing ‘crime science’ methodologies are as follows:

1. the ‘What Works’ programme and Campbell Collaboration
2. ‘Designing out of crime’ approaches [burglars for example are discouraged by barriers and markers (fences, walls), indictors a territory is inhabited]
3. The Jill Dando Institute of Crime Science at UCL
4. Home Office.

This dynamics of crime science ignores the social dimensions of crime and criminality and instead focuses on the application of models pre-occupied with human habits and the physical environment of potential deviants. The focus of crime science is, as an applied discipline, bent on outcomes. Crime scientists are opposed to the latent ideas behind Criminology, which they see as propagated by theory rather than useful in an ‘applied’ setting. But because crime science neglects the social dimensions of crime and criminality (for instance, class and gender), it loses the ability to explain how social context contributes to criminalisation. A greater question remains in evidencing whether harnessing security measures (such as street lighting) is in fact more effective than investing or addressing the socio-economic aspects of crime.

Crime science in particular does not [from discussion] conclude how issues of criminality arise from control or power. Moreover, there is the exponential risk such scientists infer the reasoning of traditional sociologies and psychologies of crime tied up with the politics of the era. During the 1960s, Conservatives predicted that the sexual revolution, with its elimination of behavioural norms and its indoctrination of sexual innovation, would herald social chaos. Rates of drug abuse and alcohol consumption (particularly amongst the young) climaxed in 1963. And serious crime which had remained stable throughout the 1950s, began to rise at a rate of 20% a year in the mid-1960s. New Right Realism would retain a Conservative political stance, the significance of which would be two-fold: to concern itself with the attempt to control and prevent criminal behaviour, rather than concentrate merely on theoretical perspectives of crime and criminality; and to provide a clear demarcation between criminals and non-criminals, insinuating the former should be prevented and/or punished (Livesey, 2011).

Technological solutions are heralded as ‘working’ by drastically reducing crime – but what quantitative proof do we have to hold this ideal to be true? ‘Designing out crime’ measures, such as more secure mobile phones, could equally be attributed to a downturn in theft because there is a general decline in the value of such merchandise. Can we underestimate the notion an advance in technology is not just the mainstay of businesses and government agencies, but of criminal intelligences too? Conversely, there are forms of technological regulation (e.g., Internet filters) which operate outside any scrutiny inherent in formalised regulatory systems like the Criminal Justice System. This is perhaps controversial given the idea the Internet has facilitated the ease with which people’s information can be obtained and then used for identity theft (Lilley, 2002, p.99). A BBC exposé, ‘Are there criminals hiding in the cloud?’ (dated 08 May 2011) reveals how the transition from storing ‘sensitive’ data on a hard-drive to using online services to the same end has altered the course of security, enabling criminals to broaden the sophistication of their exchanges and de-encrypt information for personal gain. If ‘it works’ why does there continue to be failures on the producers of technology to facilitate greater security functions? It seems solely understanding whether a technological imperative ‘works’ carries consequences which ignore the normative and social dissonance of crime. This in turn, can have ethical repercussions for what we consider as ways of reducing criminality. From the discussion so far, there is serious concern raised over the credibility of crime science. Can we dismiss this as a ‘pseudo-science’, one which fails to take account of key variables (gender, class, religion etc.)? There is certainly nothing to indicate crime science can predict with any more legitimate authority than the standard criminological approach.

In conclusion, we can relay there are some genuine reasons to believe why technology within the Criminal Justice System has become insurmountable in its regulatory nature. In essence, technology as ‘technomia’ may be regarded as a more powerful regulatory body than the law – one which attempts to encourage certainties where there are none and distributes justice unequally.

Bibliography

Books
Boni, W and Kovacich, G. (2000) High –Technology Crime Investigator’s Handbook: Working in the Global Information Environment, Butterworth Heinemann

Brewer, Kevin (2000) Psychology & Crime, Heinemann

Bullock, K and Tilley, N. (2003) Crime Reduction and Problem-orientated Policing, Willan Publishing

Foucault, M. (1977) Discipline and Punish: The Birth of the Prison, Penguin Books

Lessig, L. (1999) Code and The Laws of Cyberspace, Basic Books

Lilley, P. (2002) Hacked, Attacked & Abused, Kogan Page

Loader, B. and Thomas, D. Cybercrime: Law Enforcement, Security and Surveillance, Routledge

Morrison, K. (2006) (2nd edition) Marx, Durkheim, Weber: Formations of Modern Social Thought, Sage

Putwain, D and Sammons, A. (2002) Psychology and Crime, Routledge Modular Psychology Series

Electronic resources
Gill, M and Spriggs, A. (2005) Assessing the Impact of CCTV: Home Office Research Study 292, http://webarchive.nationalarchives.gov.uk/20110218135832/rdshomeoffice.gov.uk/rds/pdfs05/hops292.pdf (accessed 13 May 2011)

Griffith, G and Roth, L. Briefing Paper No 11/06, NSW Parliamentary Library Research Service: DNA Evidence, Wrongful Convictions and Wrongful Acquittalsh http://parliament.nsw.gov.au/prod/parliament/publications.nsf
/0/78687DA75A8A712FCA2571D50016502F/$File/DNA%20Evid (accessed 15 May 2011)

Gruber, J. The New Genetic Information Non-Discrimination Act: How It Came to Pass and What It Does, http://www.councilforresponsiblegenetics.org/pageDocuments/PGWOGJ2F30.pdf (accessed 13 May 2011)

Hudson, A. (2011) Are there criminals hiding in the cloud? http://news.bbc.co.uk/1/hi/…/9477968.stm (accessed 13 May 2011)

Livesey, C. A Resource-Based Learning Approach, Deviance and Social Control: New Right Realism, http://www.sociology.org.uk/devnrr.pdf (accessed 15 May 2011)

Miller, L. (1995) The Positive and Negative Effects of DNA Profiling, http://essaycoursework.com/…/the-positive- and- negative- effects- of-DNA-profiling (accessed 13 May 2011)

Rothstein, M. A. GINA, the ADA and Genetic Discrimination in Employment, http://www.ncbi.nlm.nih.gov/pmc/articles/
PMC3035561 (accessed 15 May 2011)