Review of emerging technologies in policing: findings and recommendations

1. Introduction

This report presents the findings from a study that focused on examining the social and ethical implications of emerging technologies for informing policing practice, and the legal considerations that need to be taken into account for the adoption of emerging technologies within the Scottish policing context. The study consisted of a systematic review of the social science research and policy-relevant literature, and a review of relevant case law, legislation, and appropriate legal literature. The study was commissioned by the Scottish Institute for Policing Research for the Independent Advisory Group on Emerging Technologies in Policing. The information presented in this report covers Key Focus Areas as part of the specified requirements for Workstreams 1 and 2, and as such, aims to identify best practice internationally in legislative frameworks surrounding emerging technologies, as well as ethical standards and legislative gaps (workstream 1), and international best practice in the use of research evidence for the development, adoption and implementation of ethical and scientific standards for emerging technologies in policing (workstream 2). This includes: examining good practice from other jurisdictions and fields, including comparing legal frameworks and ethical standards (WS1 KFA 2); considering the impacts of the adoption of emerging technologies on individuals’ rights, the extent to which the existing legislation provides sufficient safeguards against these risks (WS1 KFA 5), whether there are any legislative gaps that need to be filled, and whether aspects of legal frameworks in other jurisdictions could fill any gaps (WS2 KFA 5); and how research may inform policy and practice concerning the development and use of scientific standards and ethical guidelines concerning emerging technologies (WS2).

To fulfil these requirements, this report provides a descriptive overview of the relevant literature and case law available, as well as recommendations for best practice in the implementation and dissemination of these forms of technology in police practice, including for the development and use of ethical and scientific standards frameworks. In addition, it highlights areas where further research and/or trials are required to be able to understand the implications of certain types of emerging technologies before new or additional recommendations can be made for mitigating any foreseeable negative impacts prior to implementation and/or wider dissemination in policing. Lists of areas where the application of current legislation remains untested and requires further consideration will also be identified for future exploration.

1.1: Emerging Technologies

The term ‘emerging technologies’ has gained traction in recent years in different public service and policy environments. Use of the term is quite fluid, but it is generally used to refer to a range of technologies, usually digital technologies, and in a number of different contextual settings. In the context of policing, many of these emerging technologies facilitate new information flows in and around the institutions of policing, and in doing so impact on internal structures and citizen-police interactions. Examples of emerging technologies in policing would include Electronic Databases, Automatic Face Recognition (AFR), Body-Worn Video (BWV) Cameras, Artificial Intelligence (AI), and Drones.

1.2: Defining Emerging Technologies

The term emerging technologies is generally used to describe a new technology, but it may also refer to the evolution of an existing technology or a planned implementation of a recently developed technology. It can also have different meanings when used in different areas, such as media, business, science, or public services. The term commonly refers to technologies that are currently developing, or that are expected to be implemented in the next five to ten years, and is usually reserved for technologies that are creating, or are expected to create, significant social, institutional, or economic impacts (Bray 2017; Kendal 1997; Whittlestone 2019; Wright and Friedewald 2013). Emerging digital technologies are often perceived to offer new business and service opportunities whilst, at the same time, pose challenges to existing ways of doing things. These include social, ethical, and legal challenges, and for digital technologies, these often relate to data processes and data protection. For public services, such as those agencies involved in policing policy and practice, such data processes are likely to involve the personal data of citizens and will have a bearing on citizen-state relations. When thinking about what constitutes an emerging technology, there are four key features that need to be considered:

1. The nature of the technology

2. The technological components

3. Applicational elements

4. Point of emergence

1.2.1: The Nature of the Technology

Emerging technologies in contemporary discourse are usually assumed to be digital technologies that support new information flows embedded in new information and communication technologies (ICTs). In this respect, such technologies involve data, including personal data, and data flows. Whilst emerging technologies may be defined by their digital component, they do not have to be exclusively digital and can comprise of other elements, including physical features. Philosophically, any physical artefact can be considered a technology, from the humble pencil through to satellite weaponry.

1.2.2: The Technological Components of Emerging Technologies

Emerging technologies are usually a configuration of a range of technological artifacts and are not really a single technology. For example, a surveillance camera system would include a camera, a network, monitors, and recording and storage equipment. As such, an emerging technology is really an assemblage of different components. So, when we talk about an emergent technology, we are not necessarily talking about the individual components of the technology, but often their combined integration into a new ‘technology’ or application. The emergent technology may therefore derive from the convergence of a number of technological developments including computerisation, miniaturisation and/or enhanced technological capability/capacity.

1.2.3: Applicational Elements: The Emergent Aspect of Emerging Technologies

Given that emerging technologies are comprised of several different components, it is unsurprising to suggest that not all of the components are new, or emerging, and many have been in existence for a number of years. The emergent element of these technologies is their combination into a new application or artefact, or their introduction into a new service area (Stahl et al., 2017). Looking beyond the technical artefact, emerging technologies can also be considered emergent in that they facilitate emerging new informational relationships and ways of working. So, it may not be the technology that is new, but its introduction into a new service area, and the impacts that the technology has in that service area (Kendal 1997). Alternatively, it may be the case that an emergent technology has existed for many years, but that a new application has become envisioned that had not previously been foreseen (ibid).

1.2.4: The Point of Emergence

Emerging technologies are often at a different point of emergence. Some may be envisioned, but not yet in existence, others may be in development or being trialled, whilst others are already at the point of implementation, yet are still considered to be emerging. It may be that an emerging technology has been around for years, but that it has only recently diffused into a specific service setting.

A simple analytical framework for emerging technologies is presented in Appendix 1, which provides further detail as to how an emerging technology can be defined and specifically draws out the key features of an emerging technology

1.3: Implications and Consequences of Emerging Technologies

By definition, the full impact and consequences associated with the use of emergent technologies is not known and the implications of their use are uncertain and ambiguous (Sollie 2007). There may be perceived benefits of their use that do not materialise, or unintended consequences that do. Moreover, sometimes the visions bestowed on technologies by their advocates, in terms of what they will deliver, does not emerge in practice.

1.4: Rationale for the Study of Emerging Technologies

A key problem with emerging technologies is how to deal with the potential associated ethical issues that may result from a technology that is not fully entrenched in society (Bray 2017). As Whittlestone (2019) notes, technological innovation is comprised of several stages: 1) research, 2) development, 3) production, 4) marketing, and 5) diffusion into society. A technology that has completed all these stages is sometimes called an entrenched technology. Entrenched technologies are those that are widely used in society and have familiar uses and known impacts on society (Whittlestone 2019). The consequences of emerging technologies however are still not largely understood. For these to become successful and entrenched technologies, further research and/or testing may be required to understand their impacts (ibid). This is also the case for technologies that may have been developed a while ago because, ‘although they are known by researchers, decision makers and end users’ may not yet be aware of the potential outcomes of these technologies (Kendall 1997; Whittlestone 2019). According to Brey (2012) the foreseeable future’ in relation to technological development and embedding can be equated to a time frame of 10-15 years. This means that the ‘emerging’ phase within technological development may take up to 15 years and thus, it may take up to 15 years before the particular consequences associated with this form of technology may be fully known to an extent that is fully justifiable in terms of its broader rollout (Stahl et al., 2017, Brey 2012).

Given the uncertainty around emerging technologies, we can only make speculations about future products or the uses and impacts of recently developed technologies. However, by exploring research concerning the impacts of trials and elementary applications of recent technological developments (within the 15-year timeframe suggested by Brey 2012), early interventions can be made to mitigate any potential problematic impacts that may be associated with a particular technology. This is especially important considering that once a technology becomes entrenched in society or within a particular institution, it is very hard to make fundamental changes to its overall design and embedding in society (Bray 2017; Asante et al., 2014; Liebert and Schmidt 2010). So, unlike with entrenched technologies, there is more space for manoeuvre in the social embedding of emerging technologies. Examining the existing research focusing on trials and elementary application of new types of technological developments within a particular sector can help us anticipate the possible future consequences of its implementation more broadly within the sector (i.e., in other geographic and governance contexts) or its application and implementation across different sectors (Whittlestone 2019).

It is important to note however that it not possible to make definite or even reliable predictions about the exact nature of the consequences that the application or implementation of a technology will have within or across different societal sectors or in different contexts with emerging technologies. That said, analyses of the existing research can help identify plausible and possible outcomes which can help identify possible risks and benefits. In turn, this can help with strategic decision making and allow steps to be taken during the rollout of these technologies to avoid undesirable effects.

1.5: Aims of this Report: Emerging Technologies in Policing Practice

This study examines the current social, ethical, and legal issues associated with emerging technologies in policing with a view to improving best practice in the use of particular technologies in policing. In doing so, it aims to meet the required specifications for workstreams 1 and 2 in terms of identifying: a) best practice internationally in legislative frameworks, as well as ethical standards and legislative gaps, and b) international best practice for the development, adoption and implementation of scientific standards and ethical guidelines. As such, it focuses on the ways and extent to which the existing interdisciplinary research literature and has identified the range of issues associated with particular types of emerging technologies and the extent to which these have been arisen and been addressed in the existing legal frameworks. This will help to enable the identification of existing shortcomings in research capturing the impacts of use of these technologies in police practice, and in the application of the law in governing the use of these technologies. It will also help identify the key pre-requisites for best practice in the implementation of these technologies more widely within the sector, and in integrated activities between the police and other public and private sectorial bodies.

1.5.1: Understanding the Social and Ethical Implications associated with Emerging Technologies for Best Practice in Policing

When defining what constitutes best practice for the embedding and rollout of a particular technology, it is necessary to first establish what is considered a socially desirable and acceptable direction. An important part of this process is understanding the possible ethical and social impacts that a particular technology may give rise to (Grunwald 2011; Jacob et al. 2013). This is because only with a clear understanding of the associated social and ethical issues can these be anticipated, reflected upon, deliberated with relevant stakeholders, and be responded to. Understanding these issues, as well as the recommendations made from research examining trials, and the implementation within one or more particular policing (or other sectoral) contexts, should therefore help decision makers to identify which technologies are desirable for further rollout, which pathways should or should not be pursued, and anticipate what can be undertaken or implemented in advance (by both policy and practice) to mitigate any potential negative impacts. It will also help to identify particular areas where further research and trials may be required.

Within this study, we consider the term ‘ethical and societal implications’, to refer to ways that emerging technologies may impact upon members of society or widely held values. The term ‘values’ refers to attitudes, beliefs and commitments that are deeply held and, generally speaking, widely shared by members of a particular society or closely, socio-culturally related society (e.g. considered to be collectively held by members of Western societies, European societies, Euro-American society, or Scottish society as opposed to a particular cultural group within a wider society such as, for example, by members of a particular political party within Scottish society). As such, ethical implications are related to what people feel to be right or wrong (Stahl 2012; Stahl et al., 2017).

Given that this study is intended to inform best practice for the embedding of emerging technologies within Scotland, the scope of the review of research focusing on emerging technologies has been restricted to the development, trials, application and/or implementation of particular technologies in Western societies. This is because the (relatively) close overlap in terms of ethical beliefs as well as social structure and governance regime mean that the findings and recommendations are likely to be more comparably relevant for informing policy and practice in Scotland than the findings and recommendations obtained from research focusing on the social and ethical implications from other parts of the world with different governance regimes and socio-cultural systems.

1.5.2: Legal Implications associated with Emerging Technologies: The Legal Framework

The adoption of emerging technologies in policing presents a number of legal considerations. There are four areas that have to be evaluated for all technologies deployed in policing: compliance with the law of evidence, data protection, equality and human rights, and environmental impacts. Since this report is focused on technologies in the context of police-citizen interactions, the potential environmental impact of specific technologies is beyond the scope of this study.

Recommendation

Environmental impact of the development and use of emerging technology should be the subject of specific research and processes should be assessed against Police Scotland’s Environmental Strategy 2021.

In terms of identifying gaps in the legal framework it is important to acknowledge that Scotland has a mixed legal system. This means it combines aspects of common law and civil law. The impact is that while the boundaries of legislation can be established, the boundaries of the common law are more dependent on the articulation and interpretation of legal principles (Bargenda and Wilson-Stark 2018). There are some areas of law where it is difficult to meaningfully assess how the law will be applied without a specific example of a type of technology and the context in which it is being used (Marchant 2011; Moses 2013).

The nature of the type of technology and its intended purpose will dictate which legal framework is likely to attach.

1.6: Research Questions

Our research questions are focused on two overarching key objectives:

1. Identification of best practice in legislative frameworks and ethical standards, as well as any legislative gaps surrounding emerging technologies and their adoption in policing practice, and

2. Identification of research evidence and best practice for the adoption and implementation of emerging technologies in policing, including for the development and use of ethical guidelines and scientific standards.

To achieve these objectives, we devised an approach to the study that focused on answering five key research questions:

1. What are the social and ethical implications of particular types of emerging technologies in policing?

2. What are the legal considerations associated with the adoption of emerging technologies in policing?

3. What recommendations can be made from the existing research examining the use of new emerging technologies in policing for best practice (including in relation to scientific standards and ethical guidelines) for the wider adoption and dissemination of these technologies in police practice, as well as for mitigating the social, ethical, and legal issues that may have arisen from the implementation of technological developments in trials and/or existing (limited) police practice?

4. What recommendations can be learnt for informing best practice in policing for the dissemination of emerging technologies from trials and/or the implementation of similar types of emerging technologies, and the application of associated scientific standards and ethical guidelines in the Health Care and Children and Families sectors?

5. What lessons can be learnt and what recommendations can made from the analysis of existing legal and ethical frameworks concerning emerging technology for the adoption and dissemination of different forms of these technologies in the Scottish policing context?

1.7: Structure of Report

This report has been divided into several sections. The following section presents an overview of the methodology used to conduct the systematic review of the social science research and policy-relevant literature, searches for relevant primary sources (case law and legislation) and connected legal literature. This is then followed by an in-depth description of the findings for each of the research questions. The final section of the report consists of a concluding discussion where recommendations for good practice pertaining to the embedding and dissemination of emerging technologies in policing are made, as well as for further research to address identified shortcomings in the existing research focusing on specific technologies and to test the suitability and applicability of suggestions for good practice with the policing community for mitigating any of the negative (or potentially negative) social and ethical issues identified. Areas where the application of legal frameworks are untested or ambiguous will also be identified for future consideration.