Policing agencies are indiscriminately collecting, retaining, and using vast quantities of personal data from people who are suspected of no unlawful conduct whatsoever. This has caused expressions of concern or caution from many quarters, including—notably—the Director of National Intelligence (DNI). In a declassified report, the Office of the DNI stated that massive amounts of data are being collected “on nearly everyone that is of a type and level of sensitivity . . . that could be used to cause harm to an individual’s reputation, emotional well-being, or physical safety.”
This practice of universal data collection presents a conundrum. As many have argued, it poses the risk of serious harms: violations of personal privacy and security, erroneous targeting of innocent individuals, racial bias, and even the threat that the data will fall in the hands of hackers or authoritarian leaders. At the same time, those who favor such collection maintain that the data, properly used and analyzed, holds out hope of enhancing public safety by locating serious law violators and preventing dangerous threats.
This Article offers up a novel solution to the conundrum posed by the collection, retention, and use of personal data: policing agency data trusts. Data trusts are a new form of legal instrument that allow data creators to instruct trustees on how their data may be used; the trustees ensure in turn the data is used in no other ways. There now is a small but growing body of literature—and even some experimentation—explaining how data trusts could be employed in the context of commercial data uses.
This Article turns the idea of data trusts to the problem of policing agency indiscriminate collection, retention, and use of personal data. Data that is collected would be held outside policing agency hands. Those agencies could query the collected data only according to legislative authorization and regulations established by independent data trustees. Requests would be vetted through data stewards, and only those requests consistent with governing law and the data trust rules would be permitted. Further, use of the data would not be limited to law enforcement. Rather, the data would be available to others to query—including defense counsel, and researchers who study policing and public safety. These data trusts would allow capturing any benefits of collection, while minimizing or mitigating entirely the harms and assuring a degree of democratic accountability.