Future Legal Developments in Law Enforcement
Editor’s note: As the world changes, the law must follow. Department of Criminal Justice Training staff attorneys Shawn Herron and Mike Schwendeman together have addressed a few ways the future could impact our laws.
Social Media Issues
One area of the law that must change in the near future relates to the tension that occurs with the use of social media, such as Twitter or Facebook, by public safety agencies. For example, the Kentucky Open Records Act was designed for static documents and records that, once produced, don’t change. Social media, by its very nature, is dynamic, constantly changing and subject to few controls.
As more and more agencies develop an active social media presence and regularly interact with the public via that method, agencies must have a plan for how the agency will control the site. It also must ensure information that should be preserved, is preserved, and problematic information added to the site by others is promptly handled. An agency must determine who is responsible for the site, and of course, multiple employees may be authorized to add to and edit it.
It also will become more and more critical to ensure material on social media sites is properly archived and able to be retrieved, both for open records and, for example, for building a timeline and collecting data during a disaster. Tangential legal issues include providing the equipment necessary for an employee who isn’t on duty to monitor the site and to accommodate timekeeping requirements.
Finally, as more and more people depend upon social media, there will be an expectation that an agency is monitoring the site frequently, and it is necessary to ensure that dependence is offset by language that ensures the public does not use the site for emergency response needs. — Shawn Herron
Search and seizure issues affected by new and developing technologies will continue to be a challenge for law enforcement. Privacy issues in social media have been, and will continue to be, a source of new case law. Where will the line be drawn between things posted that one should expect a certain level of privacy in and that which you will not expect privacy?
This certainly will evolve as the law in other areas of technological change relating to privacy interests evolves. Indeed, the U.S. Supreme Court in the 2014 case of Riley v. California, said because of the change in capabilities and technology of cell phones, essentially making them small computers in which people may have extensive personal information, the Court decided to protect them from warrantless searches that only a few years ago they likely would have allowed.
Use of electronic devices to locate people, monitor their activities and investigate past behavior will only increase as technology develops. This will result in an ongoing struggle for the courts and law enforcement to balance the needs of the police against the rights of citizens to their privacy. The challenges are as endless as the technological possibilities. — Mike Schwendeman
With new technology comes new crimes, and the struggle for the law to keep up with both. Changes in state statutory law are bound to the schedule of the Kentucky General Assembly, and of course, federal law often takes years to actually shift to accommodate new ideas. And sometimes, something unusual comes up that causes law enforcement to approach a new problem with laws that aren’t specifically designed for that problem.
For example, in July 2016, a game company released a new version of an old game, Pokémon Go. The augmented game is played using cell phones, and players attempt to find and catch virtual Pokémon creatures using an avatar. The unique feature of the game is it requires players to be out and about in public, tracking the Pokémon on an enhanced version of Google Maps — and the players’ avatar only moves when the players themselves move.
Features of the game encourage players to go to a particular location, where the virtual Pokémon would be “lured,” which then attracts all players in the vicinity, as well. These same game features, however, might entice players into situations that cause interaction with law enforcement. For example, spotting a Pokémon on the screen might cause a player (who hopefully is a passenger, rather than the driver) to stop suddenly while driving to allow the player to catch the Pokémon. Players who are looking at the phone while walking easily could walk into traffic or into someone else, causing injuries to themselves or others.
Even more dangerous is the possibility the game features themselves could be exploited to lure people into a hazard. In fact, one of the features is even called a “lure” and is intended to draw players to a particular physical location who all would be holding smartphones. Other features designed into the game, such as the Gym, also may cause players to congregate in particular places — to the consternation of the occupants of those locations. In most cases, those locations are public, such as parks, but in one instance, an individual in Massachusetts discovered his house, a converted church, had been so designated, causing individuals to stop by and linger for a period of time, at all hours.
As officers encounter these types of situations, it is critical to determine if any existing laws are being broken. Certainly trespass might be an issue, as would wanton endangerment if, for example, the subject walks into traffic or a crowd without looking. KRS 189.292, the “texting while driving” law, might be a possibility, but by the language of the statute, it would only apply if there actually is two-way messaging ongoing via text or audio. With the current iteration of the game, there is only a two-way process of interaction with the game itself, with no human interaction, although that could certainly change. However, at this time, it appears, the plain language of KRS 189.292 would not apply.
The Pokémon Go craze might be over quickly, but with the current popularity of this game, certainly more game developers will take heed and develop similar projects that encourage players to get out and interact with the “real world.” Future games could lead to other concerns for law enforcement. — Shawn Herron
Use of Force
With new tools come new opportunities to make use of such tools. A case in point is the use of a robot to deliver a small explosive device in a barricaded-subject situation on July 7, 2016. Although the investigation is ongoing as to the legitimacy of the use of deadly force, the use of the robot to actually deliver the explosive appears to be unprecedented in law enforcement in the United States.
Under Kentucky law, the mechanism by which deadly force is delivered is not relevant to the decision-making process, only the legality of the use of deadly force itself. But the use of an unusual mechanism, such as a robot or a drone, will open new discussions about the legality of what is, in effect, a remotely delivered use of deadly force. — Mike Schwendeman