Taken from 9-1-1 Magazine.com, September 13, 2011
Written by Dale Peet and Steve Serrao. Captain Stephen G. Serrao is a former New Jersey State Police Counterterrorism Bureau Chief. He now serves as Director of Law Enforcement Solutions on the Memex Solutions Team at SAS (www.memex.com), the leading worldwide provider of intelligence management and data analytics solutions for law enforcement, military intelligence and commercial organizations. Dale Peet is a 23-year veteran of the Michigan State Police and the retired commander of the Michigan Intelligence Operations Center, Michigan's largest and primary fusion center for homeland security. He now serves as Principal Consultant to the Memex Solutions Team at SAS.
Technology and investigative processes on TV aren't helping solve real-world cases
In the years following 9/11, there have been numerous law enforcement initiatives with the goal of thwarting future terrorism. The public follows some of these developments, but many people lose track on the specifics that have been allowed under these initiatives. They are often left wondering if privacy or personal rights have been eroded by our efforts to thwart terrorism.
Let's face it: most citizens aren't experts on the finer points of due process and investigation protocols. However, as a nation we do watch a lot of TV. And therein lies the rub.
In the years following 9/11, several TV dramas have popularized the notion that there are a lot of high-tech developments, not to mention relaxation of due process, prevalent today in the pursuit of criminal suspects. It's hard to watch all these shows portraying modern law enforcement techniques and separate fantasy from fact.
The problem is that TV shows like Criminal Minds and Hawaii 5-0 create unrealistic perceptions that law enforcement has capabilities that aren't readily available, which leads to outsized public expectations of how cases can be solved. For instance, the portrayals seem to show a great reduction in personal privacy. Everybody believes the technology they see on these shows is real and in use by their local PD.
Sure, back in the 60's communicators allowed Captain Kirk to talk directly to the Starship Enterprise. But those communications capabilities didn't come close to becoming reality for consumers for another 25 years.
Police forensic TV shows are similarly showing cutting-edge methods that aren't really available, despite public misconceptions. The result is the public believes that we should be able to solve a complex crime in 12 hours or less. Unfortunately, this can affect jury trials and also creates doubts that the police have done everything they can to solve a crime. Jurors end up shaking their heads because the case seems bungled, at least compared to the action they watched just last night on their favorite crime show.
On Criminal Minds, the analysts communicate with a woman at a console at headquarters who seemingly has access to every known database in the world. The team accesses this data with or without probable cause or warrants. They also have a "camera in the sky" video feed, and whatever other technology the writers can dream up and place in law enforcement's hands.
Criminal Minds is not alone. Hawaii 5-0 is the latest show to go down this mythical evidentiary path, with an updated Steve McGarrett leading the charge. In the 21st Century version, McGarrett uses all sorts of technology to beat the bad guys.
In many cases he's accessing technology that does actually exist - but way outside the limits of the law, such as judicial approval. Basically, McGarrett's invading the privacy of citizens in the pursuit of justice. It raises questions among naive viewers about what a police officer really needs to do to get that information.
McGarrett is also depicted watching a car via the suspect's OnStar system. He repositions satellites for high-altitude surveillance. It's highly likely that most law enforcement investigators are unaware that they can reposition satellites on an as-needed basis - probably because it can't be done! Not even a regional Fusion Center can make a call to get that pipedream to happen.
This isn't anything new in Hollywood. On NYPD Blue in the 90s, there wasn't a suspect interview where the cops didn't violate the citizen's rights. That created a belief among many Americans that beating up suspects is legit. It wasn't then, and it still isn't today.
To some degree, maybe these shows are giving the people what they want. After 9/11, many of us felt the frustration, anger and disbelief that such a horrible thing could happen - in spite of the great nation we live in and the great law enforcement agencies we have in place. Maybe these depictions are Hollywood's answer, to make us feel that we are in control and will go to any measures necessary to identify and stop threats. It's easy to relate to that, and quite honestly many of us viscerally want to feel that sense of power and control over our security and our lives.
But in reality, law enforcement today adheres to more guidelines than ever regarding the correct ways to handle and respect privacy. At our law enforcement Fusion Centers, almost every day there is a discussion about proper handling of privacy in active cases.
In the wake of 9/11, the National Criminal Intelligence Sharing Plan endorsed the concept of an intelligence system that allows data sharing among local, state, tribal and federal authorities to promote effective protection of the homeland. But those intelligence records must be reviewed every five years and graded, re-validated and then deleted if they don't meet strong standards. There are well-defined limits to what can be accessed and shared.
In fact, most agencies with intelligence data have added automation via intelligence management platforms to ensure these records are being managed in compliance with CFR 28, Part 23, and any other binding agreements, such as consent decrees, governing storage and use of these records. For example, a good platform will let you know what records are five years old and need to be examined and possibly deleted.
Let's look at some of the TV show examples we highlighted above. OnStar can be tracked, yes, but police don't have unfettered access to that. You need to get a court order or have a vehicle reported stolen. Police can't tap into OnStar to view real-time locations on a map on a cell phone, and there certainly isn't a feed to allow the Fusion Center to show vehicle movements on a 3-D, infra-red, geo-coded map illuminated like NORAD in the movie War Games on a wall-sized big screen display.
You'll frequently see an analyst (sorry - actor) sitting in the office and accessing records directly from a company. In reality, law enforcement officials cannot access that kind of data unless they have a search warrant and an affidavit. Even then, the company would have to grant the info, such as personnel records and address, or details such as where a suspect entered the building with his card access.
Similarly, accessing medical records and psych evaluations that are sealed required court permission. Medical records are sealed via HIPAA regulations - Fusion Center computers simply aren't capable of accessing that information. Credit card records are also protected and law enforcement needs a search warrant to get individual credit card transactions.
It bears mentioning that search warrants or affidavits are very specific and very defined when it comes to what law enforcement can look for and where they are looking for it. If they find something that wasn't stated in the search warrant, they need to go back to the judge and get a new order to seize that additional evidence. Yet nowadays, it is rare to even see a TV show where they have to request and then produce a search warrant!
One of our favorites is the TV scene where the Fusion Center pulls up tracking cams from live feeds so police can see traffic moving, and the cop can pan and zoom from his patrol car. Or he grabs a video feed from the nearby toy store on-demand. That is all pure fantasy. In most cases, there is no control of these cameras - it is just a feed - and private company cameras are not accessible in real-time.
One interesting note is that much of the legality of access to technology varies by state. For example, in New Jersey, law enforcement can fit a suspect's home with a dialed number retriever at a lesser standard than actually tapping and listening to a conversation. It's a tiered-step process of exhausting investigative options before a judge will even authorize law enforcement officers to take a more intrusive approach such as a wiretap, and even then a court order is still required.
However, in Michigan it's extremely difficult to get any wiretap court order via a state judge. Sometimes the only hope there is if it becomes a federal case - then a broad Title 3 search warrant can be sought via a federal judge to be able to listen to conversations. So law enforcement officials need to be aware of state-specific legal issues relative to authorized use of technologies in an investigation.
Perhaps the hardest part of living up to the expectations os TV viewers is the immediate gratification syndrome. The expectation that TV has created in citizens and even some law enforcement officers is that the details of an incident should be available in a high-definition multimedia format and 100-percent correct, right now. But that isn't reality.
In the post-9/11 world, that desire for fast action is understandable. And rapid-fire action can help drive TV ratings. But it would be refreshing if we could help the public understand that many times Entertainment and Enforcement share only the same letter "E" and little more.
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