Law enforcement officers have no problem using the latest and greatest technologies to police the people, whether it’s using facial recognition tools, cellphone geolocation data, or recordings obtained from smartphone technologies such as Amazon’s Alexa. But it seems that when the people use the very same tools to police the police - well, that simply won’t do.
For example, we know that the police typically don’t like being recorded while effecting an arrest and will often order bystanders to refrain from doing so, and have even been known to take custody of devices and delete data from them. Along the same lines, law enforcement has never been a fan of a more mundane and less tech-savvy practice that many motorists engage in: flashing their headlights in order to warn other motorists of a speed trap.
So I wasn’t surprised to learn that the New York Police Department had set its sights on the 21st century version of headlight flashing: the Waze app’s user-submitted reports regarding speed taps and DWI checkpoints.
According to the New York Times, last weekend the NYPD’s acting deputy commissioner for legal matters, Ann P. Prunty, sent a letter on behalf of the NYPD to Google (the owner of the Waze app) to demand that it remove that feature from Waze. The rationale for this request was as follows: “The posting of such information for public consumption is irresponsible since it only serves to aid impaired and intoxicated drivers to evade checkpoints and encourage reckless driving. Revealing the location of checkpoints puts those drivers, their passengers, and the general public at risk.”
If Google refused to do so, Prunty indicated that the NYPD would pursue all legal remedies available to it to achieve its goal of preventing people from sharing said information via the app.
For starters, this request, if granted, likely infringes on the First Amendment rights of ordinary citizens, but that’s an issue that the courts will have to grapple with if legal remedies are indeed pursued by the NYPD. That’s certainly an interesting issue, but what I found to be even more interesting was that the letter was a perfect example of a knee jerk reaction to technology.
I say this because people have always found ways to share information regarding the arrival or location of the police. There are code words used by kids on the street that warn others when police appear on the scene. And, as mentioned above, motorists flash their headlights after encountering a speed trap to warn other drivers. Similarly, truck drivers use their CB radios to communicate the whereabouts of police to other truckers. And certainly cell phones have been used by motorists for the purposes of sharing information via phone calls for that same reason as well.
In other words, citizens have always found ways to communicate with one another with the end goal being to avoid police interaction. But in the past they’ve used the only methods available to them at the time, which were certainly less effective and not nearly as far-reaching as an app like Waze.
Enter technology and the power of social media, and suddenly ordinary citizens have the ability to broadcast their observations of law enforcement activities far and wide. It’s important to note, however, that while the efficiency and reach of the information sharing has improved, the essence of it is the same. It’s simply people communicating with one another regarding situations that are occurring in plain sight. Technology and social media have simply amplified their voices.
In other words, as I’ve oft repeated in this column since 2008, the medium doesn’t change the message. And in this case, I would argue that the message falls within the parameters of free speech, and that imminent danger exception does not apply. The fact that the message is now more easily transmitted to a larger number of people doesn’t change that fact.
The NYPD seems to have lost sight of the fact that the online is simply an extension of the offline. Should it follow through with its threat to litigate, this will be an interesting case to follow. I strongly suspect that First Amendment rights will trump law enforcement’s knee jerk reaction to technological innovation, but only time -and a lawsuit - will tell if I’m right.
Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at firstname.lastname@example.org.