Is Law Enforcement Obsolete? Is Preemption reasonable?

I spent the weekend at the Accelerating Change 2004 conference in Palo Alto. Andreas Olligschlarger gave a presentation on the inadequacy of law enforcement information technology and what they were doing to address it. What was interesting about this challenge is how “fighting the last war” it all was. I have no doubt that we can improve substantially law enforcement’s ability to deal with old fashion crime… to catch criminals after the fact and incarcerate them. Certainly this helps deter crime committed for selfish reasons. But this sort of crime is largely small in scale…. There just isn’t much bonus in killing large numbers of people to steal a wallet or operate an illegal gambling operation.

But, after 9/11, the crime about which we are now increasingly worried is that committed by those willing to die for their cause. These people are willing to die in order to draw attention to the cause they believe in and punish those they think are their enemies. The difficulty we face is that, until the crime is actually committed, the perpetrators of these crimes are not violating any law so they cannot be detained without violation of their civil right, the time from crime in progress to major damage is likely too short to deploy law enforcement officials and catching the crimials is not helpful because they may expect to die in the course of committing their crime. There were very limited reasons to worry about box cutters carried onto airplanes before 9/11. I don’t know how we stop individuals from carrying harmless stuff onto airplanes that can be combined with stuff from others on-board to form a weapon.

We can reduce our risk of this new style crime by:

  • A pack not a herd. having an alert and trained citizenry that can act locally and on their own initiative when they suspect a crime in progress. The “Lets Roll” passengers of of the 9/11 flight that fought back against the terrorists are one example. The passenger on another airplace that noticed Richard Reid trying to detonate his shoe is another. If we take this notion seriously we may want to relax subantially restrictions on concealed carry and other forms of gun control. In fact, we may want to actively promote people bringing weapons onto airplanes because it increases terrorist uncertainty further! It also increases the risk of a drunk stupid passenger with a weapon causing more limited damage.
  • Preemptive incarceration. We allow law enforcement much more lattitude in arresting and incarcerating people who have not done anything obviously wrong (based on “probably cause”?). The large scale crime described above forces us to re-weigh the costs of false positives and false negatives in law enforcement. The notion that we are going to tolerate a much higher level of false positives makes me really unhappy, but the fault may lie with the new technology for destruction and not with law enforcement itself.
  • Memetic warfare. We organize to find people promoting ideologies adherence to which substantially increases the likelihood of violent attack and engage in “the politics of personal destruction.” However the notion of our government actively doing this to private citizens make me more than a little nervous.
  • Expandng “Fire in a crowded theater” law. Existing law recognizes that the first ammendment does not permit someone to shout fire in a crowded theater. Perhaps we can find a way to extend this law to cover ideologous the instigate violence against other groups or against the country. Again, we have to think seriously about how to structure such a rule to limit abuse. But, again, we are reweighing the risk of false positives against the risk of false negatives.

But whichever rules you pick, the notion that enhanced and centralized law enforcement technology can, in and of itself protect us from another 9/11 is highly unrealistic.

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