Youth Surveillance: Recommendations
In September 2021, the NACDL Predictive Policing Task Force published a report on the various issues surrounding data-driven policing.{1}1 NACDL Predictive Policing Task Force, “Garbage In, Gospel Out: How Data-Driven Policing Technologies Entrench Historic Racism and ‘Tech-Wash’ Bias in the Criminal Legal System” (September 2021). The Task Force’s recommendations addressed some aspects of policing technology as related to youth, but the surveillance of youth has proliferated and advanced significantly in the past few years.{2}2 NACDL Predictive Policing Task Force, “Recommendations on Data-Driven Policing” at §8 (October 2020).
The Fourth Amendment Center revisits this issue herein with a special focus on youth and the impacts of growing youth surveillance regimes. These recommendations, and the forthcoming accompanying report, address the increase in the methods and frequency by which youth are surveilled, and how this brings youth into increased contact with law enforcement and the criminal legal system.
NACDL does not believe any surveillance technology should be used in schools or other youth-serving institutions. These tools co-opt the roles of teachers and youth workers, and track and criminalize adolescents under the guise of safety. However, it is clear that these technologies are being considered or have been implemented in cities and towns across the country. The following recommendations are for areas that are considering or already using these technologies.
1. Top-Line Recommendations
- There should be no automation in law enforcement decision-making. Police surveillance tools and the use of AI technologies for law enforcement decision-making are inconsistent with democratic values in a free society. These technologies have been routinely abused by state actors and implicated in systemic rights violations. Youth, at formative stages of their life, are particularly vulnerable to the harms caused by surveillance and unnecessary law enforcement contact. Moreover, these tools exacerbate the vulnerabilities and biases in the criminal legal system and are actively contributing to long-term surveillance and permanent dossiers of information on growing and developing youth and emerging adults that follow them into their later adulthood. Law enforcement should not otherwise accumulate or access data specific to youth through social media monitoring or other automated data-gathering practices for criminal enforcement purposes.
- A warrant should be required for law enforcement to access any data gathered about youth or in a youth-serving institution via technological surveillance. This includes any data or alerts generated by vape-detection software or other similar technologies in a school or otherwise, and/or social media monitoring by the school or youth serving institution. None of the above should be shared with law enforcement without a warrant.
- School Context: School resource officer programs must be treated as law enforcement departments under the law. They should be treated as law enforcement agencies under the Fourth Amendment and Riley v. California, 573 U.S. 373 (2014) (finding that a warrant is required to search cell phones). The school “special context” exception, which allows warrantless searches under the Fourth Amendment in limited instances, should not apply in the case of external law enforcement officers or 287g officers contracting as school officers, to schools procuring advanced surveillance technology, and in the case of any algorithmic or predictive policing mechanisms being deployed against the students.
- Searches of youths’ digital data/devices cannot be based on the consent of the youth or their guardians. Youth are especially vulnerable to the power dynamics of law enforcement interactions and any “consent” given by a youth or regarding a youth is necessarily coercive.
- Law enforcement entities and authorized agents should not include youth on any law enforcement “gang” or other criminalized designation database or list, on the basis of automated decision-making. For those who are placed on such lists:
- Notice Requirement: Youth, who are especially vulnerable to the harms of permanent criminalization, and emerging adults, who are disproportionately included on data-driven policing databases, must be provided notice, including notice to their designated guardian when applicable, of their presence, and the basis for their inclusion, on any databases that law enforcement departments access and utilize, including gang databases, strategic subject lists, and other databases that incorporate social media monitoring or other technological surveillance.
- Right to Counsel: Youth must be provided the opportunity, through a private attorney or, if they cannot afford an attorney, an appointed attorney, to challenge their inclusion on any such databases, the data accumulated, and law enforcement’s interpretation of the data, and, also, to seek removal from the databases. Additionally, youth must be given full criminal due process rights (including notice, a right to appeal, a right to representation, and the right to remain silent) for criminal-adjacent proceedings such as school expulsion or any other form of discipline that is based on automated data or technology as evidence.
- Right to Challenge Inclusion/Seek Removal: A youth’s ability to challenge their designation and inclusion on such databases, and to seek removal from them, the data accumulated, and law enforcement’s interpretation of the data should not be time limited. Given the ongoing nature of law enforcement surveillance and law enforcement contact with youth, the impact of law enforcement interactions with youth on their personal development, self-esteem, and educational outcomes—including school attendance, suspensions, expulsions, and matriculation—and the correlation between these factors and involvement with the juvenile and criminal legal systems, a youth should retain the right to bring such challenges at any time.
- Expungement and Sealing: Any data, records, or other information contained in any law enforcement database through any data-driven policing technology and/or social media monitoring for any youth and emerging adult should be purged on an annual basis, and sealed when the individual reaches 26 years of age.{3}3 This age cutoff should be regularly reviewed and adjusted in accordance with evolving standards of neuroscience research regarding adult brain development. Scholarship on this topic has historically identified approximately 26 years of age as a significant developmental point for many emerging adults, but current research suggests that the brain continues to develop at least through age 29, and into the early 30s for many people. The definition of an emerging adult and the protections outlined herein should be revised and remain consistent with the ongoing research in this field.
2. Governing Use
Legislatures should create uniform transparency and procurement policies surrounding the use of surveillance technology in schools, risk-assessment and response team systems, data retention and protection in schools (including when contracting with a private surveillance company), and any further usage of that data including mandatory notification to the student and families.
Risk Assessment and Automated Alerts
Any institution utilizing automated or “threat-detection” alerts based on digital monitoring of youth and their activities must have a published transparency protocol regarding notice and an opportunity to challenge for the affected youth and guardians. Risk-assessment or threat alerts should be determinatively viewed only by trained professionals who have a professional obligation to act in the youth’s best interest. They should not be reviewed automatically by law enforcement or school resource officer programs or assessed by private companies.
Private companies should never be the determiners of risk or alleged criminality, and no software-based (automatic or algorithmic) alert should be reviewed by such company. Any alerts and related information should be passed directly to a designated and trained party with a professional obligation to the youth’s best interests (such as a school counselor or social worker).
Transparency and Use Standards
School boards should establish comprehensive data privacy protections for youth prior to the procurement of any surveillance technology. Additionally, schools and police departments must hold public meetings to explain the capabilities of the technology, its risks, and the purpose and implications of its use before procuring any surveillance tools. The use of any surveillance technology must be accompanied by the adoption of AI governance best practices in the field. Finally, there must be a periodic, neutral, third-party audit of the potential risks, privacy concerns, etc. of the technology without any involvement from the technology’s vendors.
School and law enforcement use of surveillance technology that targets youth must be accompanied by written policies governing their use. These policies should reflect recognized best practices. Additionally, schools and law enforcement must have written protocols for notification and opportunities to challenge any adolescent’s inclusion in a database or surveillance list. No form of automated or algorithmic decision-making can be used to identify or categorize youth for the purposes of any lists, such as gang databases, discipline lists, or any other similar designation.
Schools should require private technology used in schools to function in compliance with the Americans for Disabilities Act (ADA) and Individual Education Plans for students (IEPs) and Title VI, to prevent the surveillance and criminalization of disabled and special-needs youth as well as discriminatory criminalization based on race or national origin.
Youth and/or their guardian(s) must have the right to view and challenge any data created about themselves/their child.
When use of a school-issued device (such as a laptop) is prescribed, all surveillance technology and monitoring practices installed or utilized on the school devices must be clearly explained to the youth and their guardian at the time of issuance. The technology and monitoring practices must be re-explained on a regular schedule thereafter (such as at the beginning of every school year) and any time the software or device settings are changed or updated. Additionally, there must be an informed and meaningful opt-in with alternatives offered to students who choose not to use the device.
3. Resources and Access to Information for Defense Attorneys
Youth and their counsel should have access to the necessary resources, including investigators and experts, to examine and challenge surveillance issues. Defense counsel must be able to challenge the validity of any surveillance methods used against their clients.
Prosecutors must provide defense counsel with prompt notice of any surveillance technologies used in connection with a youth’s case. Notice must include a detailed description of the technologies used, its capabilities, and any automated alerts or other data created about their client.
Any information provided must be available to counsel in all cases and court proceedings involving the youth, including if the youth is prosecuted in an adult court or transferred from juvenile to adult court, without access barriers pursuant to private surveillance companies’ “trade secrets” and similar claims.
Definitions
For purposes of these recommendations, the terms “youth” or “adolescent” are used interchangeably to refer to an individual under the age of majority in their jurisdiction (commonly 18 years of age). The term “emerging adult” generally refers to an individual between the age of majority and approximately the late 20s. Currently, scientific research identifies brain development as continuing through age 29 and even into the early 30s depending on the individual. However, for the purposes of this report, “emerging adult” will refer to individuals aged 18-26 as this is a widely understood period for continued brain development. Any use of the term “juvenile” herein is intended to reflect the terminology typically used by the legal system to refer to those under the age of majority.
