Published by The Lawfare Institute
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As Justice Samuel Alito noted in United States v. Jones, “[i]n the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical.” Nevertheless, there has been increasing recognition that practical protections for privacy do not dissipate entirely when digital-age government officials seek commercially collected information. Companies that collect information about their customers have both incentives and resources to resist law enforcement efforts to obtain this information. Policy-makers, commercial entities and legal scholars have all begun to reckon with this resistance and its impact on individual privacy, public safety and national security.
However, analyses of the role that digital communication companies play in mediating law enforcement access to information have so far ignored a key issue: The law enforcement agencies seeking information vary tremendously, and this variation may have a substantial impact on their ability to obtain information from digital communication companies. Different law enforcement agencies face different challenges and have different resources at their disposal. Consequently, efforts to restrict law enforcement access to data collected by digital communication companies may unexpectedly impact communities differently.
In this paper, I characterize law enforcement agencies in the United States by the size of the community they serve and describe key differences between large and small law enforcement agencies. These differences suggest that small law enforcement agencies may find it more costly to adjust their practices in response to digital communication companies’ efforts to restrict government access to their customer records, and more difficult to identify alternative sources of information. Unless variation in law enforcement agencies is recognized and considered, reform efforts will be based on an incomplete picture of law enforcement surveillance, and may have unanticipated consequences in both small and large communities.