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Farhang Heydari, The Private Role in Public Safety, 90 Geo. Wash. L. Rev. 696 (2022).

One of the pleasures of chairing faculty hiring is seeing fresh scholarly stars launching their law professor career.  During the intense whirl of hiring season, new entrants to law teaching author much of my law review article reading load.  One of the stellar scholars with an exciting trajectory is Farhang Heydari.  In his recent article, The Private Role in Public Safety, Heydari writes about private influences in policing with the authority of experience working with police officials and litigating civil rights and liberties cases.  Heydari is Executive Director at the Policing Project, founded by preeminent policing scholar Barry Friedman to strengthen democratic governance of policing.

As an example of how private enticements impact policing, consider the Baltimore Police Department’s total aerial surveillance program.  A private company, Persistent Surveillance Systems, contracted with the Baltimore Police Department to use three planes mounted with high-resolution cameras to record activities throughout 90 percent of the city.  A Texas billionaire promised to pay for the $3.7 million pilot program.  The grassroots group Leaders of a Beautiful Struggle, represented by the ACLU, challenged the overflight program, alleging violations of the rights to free association under the First Amendment, and privacy against dragnet warrantless government surveillance under the Fourth Amendment.

New scholarship at the intersection of policing, technology, and democratic governance theory is essential given the social import of the intimate relationships between private actors and police departments.  Scholars with experience in the field are particularly well-situated to garner credibility, and to design workable proposals for regulation.  Heydari’s experience is stellar.  Because of his policing technology policy work, Government Technology named Heydari one of the Top 25 Doers, Dreamers, and Drivers in 2021.

Experience gives Heydari a wise, balanced voice sorely needed in a fractious arena oft-filled with Manichean polemics. Privatization is what gave rise to the private prison-industrial complex and accountability challenges, Heydari observes.  How do we make sense of these contrasting calls to privatize and yet also curtail privatization of the criminal system?  Even more importantly, how can people seeking to address the ailments of the current system productively harness and govern the influence of private actors?

Heydari explains that private influences pervade the criminal system, from private individuals reporting and thereby steering police action, to the use of vast volumes of privately held data, such as cell phone location information.  His conceptualization of private influence is at once broader and more pragmatic than what is traditionally conceived as privatization, which refers to the outsourcing of public-sector duties to private actors.  Even more interestingly, Heydari calls attention to the influence of private philanthropy or grants of private-sector resources upon police departments.  Such private inflows of resources tempt police departments to deploy policing surveillance strategies or technology with limited public oversight.

My motivating example of the Baltimore Aerial Surveillance Systems program shows how private funding strategies can evade democratic governance and oversight.  As reported by the Baltimore Sun, the Baltimore Police Department kept the funding for the aerial surveillance program secret using a private foundation that manages charitable funds for police.  Not even the private foundation’s director knew the purpose of the money passed through his foundation for the aerial surveillance program.

In his salutary, balanced style, Heydari writes that private influences on policing are pervasive and unavoidable, and have positive as well as negative potential.  For example, private community-based violence prevention organizations can provide fresh harm reduction approaches.  Moreover, public providers of privatized services can pose challenges to regulation that are similar to those caused by private actors.  The issue is one of effective democratic governance rather than whether an actor is public-sector or private, Heydari argues.

The key is how to regulate the impact of private influences to maximize benefits and reduce harms. Heydari advocates for a “parity-focused” regulatory strategy that reduces harms, whether generated by public or private actors.  Heydari’s parity lens enables envisioning an array of legislative reforms.  For example, he suggests that regulators require the entity that approves law enforcement budgets also approve all private donations above a certain threshold.  He suggests applying open records laws to private contractors hired with funds held by, or donated to, the police.

While highlighting the promise of community-based violence prevention organizations, Heydari also cautions against allowing such organizations to operate without adequate governance.  The claim of representing the community can efface real and important differences in opinion among affected community members, Heydari observes.  Governance and transparency are important to ensure democratic accountability of these community-based organizations.

Heydari argues that the Supreme Court’s decision in Carpenter v. United States moves toward a parity-focused vision by requiring a warrant for location tracking via privately held cell-site location data obtained by the government.  This reading of Carpenter as advancing private-public parity is intriguing yet puzzling because Carpenter adheres to the requirement of government action.  The warrant requirement comes because police want to use the cell site location data, not because a private actor gathered it.  Google is not subject to the Fourth Amendment when it tracks our movements pervasively for its private purposes, the way that government actors are.  Carpenter revises Fourth Amendment third-party exposure doctrine, which usually refuses to recognize reasonable expectations of privacy in information exposed to third parties.  Carpenter still requires government action, however.  Private gathering and use of information from ubiquitous tracking is still unregulated by the Fourth Amendment unless and until the government seeks to obtain and use the information.

Heydari wisely acknowledges that perfect equivalence between public and private actors in policing is impracticable and undesirable.  So how would he mediate these differences in constitutional criminal procedure doctrine, which currently focuses on government action, as well as legislation?  In future work, it would be intriguing to see him wrestle with whether and how he would apply his parity approach to reshape constitutional criminal procedure doctrine as well as legislative action.  One of the exciting aspects of reading the work of a person poised to enter law teaching is knowing that such tantalizing ideas and open questions will be addressed in a growing body of important work to come.

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Cite as: Mary Fan, Regulating Private Influences on Policing, JOTWELL (May 31, 2023) (reviewing Farhang Heydari, The Private Role in Public Safety, 90 Geo. Wash. L. Rev. 696 (2022)), https://crim.jotwell.com/regulating-private-influences-on-policing/.