Surveillance arbitration in the era of digital policing
| Published date | 01 February 2022 |
| Author | Peter Fussey,Ajay Sandhu |
| DOI | 10.1177/1362480620967020 |
| Date | 01 February 2022 |
| Subject Matter | Articles |
https://doi.org/10.1177/1362480620967020
Theoretical Criminology
© The Author(s) 2020
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DOI: 10.1177/1362480620967020
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Surveillance arbitration in the
era of digital policing
Peter Fussey
University of Essex, UK
Ajay Sandhu
Ryerson University, Canada
Abstract
This article analyses adoptions of innovative technology into police surveillance
activities. Extending the nascent body of empirical research on digital policing, the article
draws on qualitative interview data of operational police uses of advanced surveillance
technologies. Separate illustrative examples are drawn from social media intelligence
gathering, digital forensics and covert online child sexual exploitation investigations.
Here, surveillance governance mechanisms, often authored in the ‘pre-digital’ era,
are deemed ill-fitting to the possibilities brought by new technologies. This generates
new spaces of interpretation, where regulatory frameworks become renegotiated and
reinterpreted, a process defined here as ‘surveillance arbitration’. These deliberations
are resolved in myriad ways, including perceived licence for extended surveillance and,
conversely, more cautious approaches motivated by perceived exposure to regulatory
sanction.
Keywords
Governance, policing, regulation, surveillance, technology
Introduction
Paralleling their growing presence in contemporary society, digital surveillance tech-
nologies increasingly occupy a central role in police practice. Innovations receiving par-
ticular public attention include advances in predictive policing, enhanced online
Corresponding author:
Peter Fussey, Department of Sociology, University of Essex, Wivenhoe Park, Colchester, CO4 3SQ, UK.
Email: pfussey@essex.ac.uk
967020TCR0010.1177/1362480620967020Theoretical CriminologyFussey and Sandhu
research-article2020
Article
2022, Vol. 26(1) 3–22
surveillance and portable digital police hardware among others. With this rapid growth,
however, comes a potential ‘regulatory lag’ where the pace of emerging surveillance pos-
sibilities outstrips the capacity for regulators to provide meaningful oversight. This arti-
cle focuses on these interstitial spaces: between accelerated surveillance possibility and
the more ponderous emergence of regulatory controls. It is here that new police subjec-
tivities, inference and discretion are argued to gain growing influence in shaping how
digital surveillance technologies are used and how regulatory governance is enacted. As
its core theme this article examines how digital policing involves a continual reinterpre-
tation of regulations authored in the ‘pre-digital age’ to hitherto unanticipated cutting-
edge technologies and their attendant possibilities.
Given the importance of police discretion in the operation of surveillance technol-
ogy (inter alia Bijker et al., 2012) and its rules of deployment, and building on insights
from a long tradition of police ethnographies, it is crucial that studies of digital police
surveillance engage with the situated operational environments. Moreover, social sci-
ence analyses of technology have long recognized the vital importance of the social
and organizational conditions that shape, and are shaped by, such innovations (e.g.
Latour, 1987). Taking these insights as a cue, this article empirically examines how
police officers implicated in surveillance activities interpret and negotiate the legal
and other regulatory regimes in the emergent landscape of digital policing. To make
sense of these complex interactions this article is organized over six main areas of
discussion.
The article first examines key literatures to situate the analysis. Here, discussion of
the nascent field of digital policing is companioned by attention to germane aspects
of more established literatures on technological surveillance and related police prac-
tices. The article then examines these surveillance practices within rapidly shifting
legal and regulatory environments, the contours of which are understood unevenly by
practitioners, as our later analysis demonstrates. The article then sets out the meth-
odological approach governing the research. Key findings covering the complex ways
officers engage with regulatory frameworks during digital surveillance activities are
then presented in section four. These findings are subdivided into three areas of dis-
cussion. The first identifies and analyses new spaces of interpretation generated by
adoptions of advanced technology into police practices. This engenders a milieu
where surveillance actors continually negotiate their roles relating to the affordances
of such technologies and perceptions of ill-fitting regulatory environments. These
complex negotiations are defined as ‘surveillance arbitration’. The outcome and reso-
lution of such negotiations are captured in two antagonistic approaches: some partici-
pants resist the constraints of regulation while others are highly sensitized to
rights-based implications and tread with greater caution. These categories of responses
are discussed respectively in the following two subsections. Each position is revealed
as highly nuanced, varied and ultimately mediated through subjective negotiations.
Discourses of technological surveillance, so often cast into binary frames (‘nothing to
fear, nothing to hide’, ‘privacy versus security’, ‘utopian or dystopian’ and so on),
attain more complex expression among those engaged in its operation. The article
concludes with conceptual clarification of the ‘surveillance arbitration’ processes
among law enforcement professionals.
4Theoretical Criminology 26(1)
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