If only investigations were 'As Seen On TV'
Most citizens aren’t experts on the finer points of due process and investigation protocols, but they do watch a lot of TV shows that make it difficult for them to separate fact from fantasy
By Dale Peet and Steve Serrao
For anyone involved in law enforcement, the latest crop of high-tech police shows on TV are somewhat of a mixed blessing. On the one hand, it sure is fun to watch the officers on dramas such as Criminal Minds and the new Hawaii 5-0 use all that cool technology (and more than a little disregard for personal privacy laws) to solve complex crimes within days or even hours. Those TV cops have capabilities the rest of us can only dream of.
On the other hand, you have to wonder what it does to feed the expectations (and in some cases paranoia) of the average citizen. If they think those multi-color 3D projection screens with instant links to every database known to man really exist, they’re going to have an awfully difficult time understanding why their local police department is taking considerably longer to work through evidence and obtain the necessary court orders to solve a case with which they’re involved. If they believe that their local police can pull out their Smartphones and instantly pull down the employment, medical, and criminal history of everyone on the planet, no questions asked, they’re going to worry needlessly about whether they even have any rights as citizens anymore.
Let’s face it: most citizens aren’t experts on the finer points of due process and investigation protocols. But they do watch a lot of TV, just like most of us. And when they see all that high-tech gadgetry — not to mention the very relaxed approach to due process most shows take in the interest of drama and ratings — it’s difficult for them to separate fact from fantasy. Put another way, the difference between what they see on TV and what their local police department actually does in a criminal investigation is as far apart as the difference between playing Madden 2012 and doing real blocking and tackling in the NFL.
Serious Consequences at Trial
On Criminal Minds, the agents communicate with a woman analyst 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, along with whatever cool technology the writers can dream up and place in law enforcement’s hands. Ah, if only.
Hawaii 5-0 is the latest program to go down this mythical evidentiary path, with an updated McGarrett leading the charge. In the 21st Century version, McGarrett uses all sorts of technology to beat the bad guys, including the most incredible Smartphone known to man.
In many cases he’s accessing technology that does actually exist. But he’s using it way outside the limits of the law, such as obtaining judicial approval before using it. Basically, McGarrett is invading the privacy of citizens in the pursuit of justice. This type of behavior raises questions among naïve viewers as to what a police officer really needs to obtain that information.
So, Police Can Re-task Satellites?
Of course this fantasy-based approach isn’t anything new in Hollywood. In the ‘90s, there wasn’t a suspect interview on NYPD Blue where a citizen’s rights weren’t violated. That depiction created a belief that among many Americans that beating up suspects is a legitimate form of interrogation. It wasn’t then, and it isn’t now.
To some degree, perhaps these shows are giving people a sense of security they desire. After 9/11, many of us felt the frustration, anger and disbelief that such a horrible thing could happen — in spite of living in such a great nation and having such great law enforcement agencies in place. Maybe these depictions are Hollywood’s answer, to make us feel that someone is in control and will go to any and all lengths necessary to identify and prevent threats. It makes us feel a little safer, which is a good thing.
But in reality, law enforcement today adheres to more guidelines and restrictions 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 the proper handling of privacy in an active case.
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 stringent standards. There are well-defined limits to what can be accessed and shared. This country was founded on the principle of individual liberties, and we still strongly adhere to that point of view.
Legality of Access to Information Technology
Let’s compare that reality to some of the TV show examples we highlighted previously. OnStar can be tracked, sure, but police don’t have unfettered access to it. You need a court order or a vehicle must be 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 that allows the Fusion Center to show vehicle movements on a 3D, infrared, geo-coded map illuminated like the wall-sized big-screen displays in the movie War Games.
Also on TV, you’ll frequently see an analyst (sorry — actor) sitting in the office accessing records directly from a company. That would sure save time, but 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 access to the information, such as personnel records and addresses, or details such as where a suspect entered the building with his/her access card.
Similarly, accessing medical records and psychological evaluations that are sealed requires court permission. Medical records are sealed by default via HIPAA regulations — Fusion Center computers simply aren’t capable of accessing that information. Credit card records are also protected, which means law enforcement needs a search warrant to view individual credit card transactions.
Even if law enforcement gets a search warrant or affidavit, it bears mentioning that such documents are very specific and very defined when it comes to what police can look for and where they’re looking for it. If an officer finds 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. Not only that, but they can pan and zoom the cameras from a patrol car. Another is when the cop grabs a video feed from the local toy store, as if every video camera in the world is part of some gigantic network.
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 typically accessible to police in real time.
Then there is the question of the legality of access to technology, which varies from state to state. For example, in New Jersey law enforcement can fit a suspect’s phone with a dialed number recorder 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 authorize law enforcement officers to take a more intrusive approach such as a wiretap— and even then, a court order is still required.
In Michigan, however, it’s extremely difficult to get any court order for a wiretap via a state judge. Sometimes the only hope is if it escalates to become a federal case. In that case, a broad Title 3 search warrant to listen to conversations can be sought via a federal judge. The bottom line is law enforcement officials need to be aware of state-specific legal issues relative to authorized use of technologies in an investigation.
Meanwhile, Back in Reality...
On the bright side, search technology now allows police investigators and intelligence analysts to instantly retrieve relevant hits on queries from multiple law enforcement databases, CAD systems, RMS systems, and federal or neighboring regional systems. Use of advanced intelligence platforms is enabling better investigations and exposing data that would have been hard to find in the past, like a mention of a tattoo in a free text narrative of a CAD record. These tools are helping connect the dots on crime, leverage suspicious activity reports, analyze social media and even help us do predictive analytics!
So, yes we’d all love to have access to all the cool, unlimited data resources at the disposal of our TV counterparts. Being able to look up anything about anyone instantly on our Smartphones without the need for warrants or affidavits might seem handy at times as well. And, yes we have to help the public understand the difference between real police work and the world of “As Seen on TV.” But we needn’t be too envious of the TV show technology, because our tools are getting more sophisticated and more effective every day, within the limits of law. And we’re doing good police work as a result.
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