Early this month, California Attorney General Kamala D. Harris announced a unique data initiative to expand the public’s access to key criminal justice information that has been, to date, largely blocked from public disclosure. Technology and data-focused initiatives like this one signal an important change occurring in federal and state law enforcement agencies across the country. Governments are adopting new technologies and harnessing the power of data in carrying out their law enforcement work. As governments at all levels turn their attention to technology and data, the impact on priority enforcement areas like consumer protection and cybersecurity could be significant.

A new tool to unlock criminal justice data

Attorney General Harris’s initiative, which she named “OpenJustice” in her announcement in Los Angeles on September 2, is composed of two data tools: a Justice Dashboard, which analyzes and spotlights key criminal justice data sets, and an Open Data Portal that provides access to volumes of raw data collected by the California Department of Justice from each of the state’s 58 counties.

The open-data tools provide three types of data that have been under tremendous national scrutiny in recent times: law enforcement officers killed or assaulted in the line of duty, deaths in custody (including arrest-related deaths and deaths in jail/prison facilities) and arrests and bookings. By making available the types of sensitive law enforcement data that have not generally been released into the public domain, Harris has demonstrated a preference to address difficult criminal justice issues by increasing transparency and data-oriented solutions.

Referring to the data tools as “Version 1.0,” Harris forecasted that the California Department of Justice’s project team—which she said numbers about 100 professionals—will expand the types and amount of data that will be made available to the public over time.

The California attorney general’s and federal government’s enforcement focus on data

Harris’s latest data initiative announcement follows multiple enforcement actions related to technology and consumer protection. Since 2011, the California attorney general’s office has brought suit (or acted as part of a multistate consortium of state AGs) on a range of technology-facing issues from antitrust to privacy. The office has also been pushing for policy change in lieu of enforcement, the most prominent example being the 2012 agreement between Harris and the six major mobile app platforms (Amazon, Apple, Google, Hewlett-Packard, Microsoft and Research in Motion) to adopt privacy principles consistent with California’s privacy laws.

For the federal government, too, data is increasingly becoming the future of enforcement. In a recent speech this past May in New York, U.S. Justice Department Fraud Section Chief Andrew Weissmann said that his prosecutors are using a “COMPSTAT approach” to bringing foreign bribery cases, a reference to the “computer statistics” method popularized by the New York Police Department that utilizes data and statistical analysis of crime patterns to tailor the deployment of law enforcement resources.  Elsewhere in the federal government, this data-centered view of enforcement is taking shape, as well. In August, General Counsel Steven Bunnell of the U.S. Department of Homeland Security remarked in a speech at the American Bar Association’s Homeland Security Law Institute that DHS and other security agencies are expanding their use of “Big Data and predictive analytics so that [they] better align limited security resources to the risks that pose the most concern.” And this declaration follows on the heels of U.S. Defense Secretary Ash Carter’s April announcement at a Stanford speech of the creation of the Defense Innovative Unit Experimental (DIUx), an office staffed by the Defense Department in Silicon Valley that serves as an interface with the technology industry on a range of public-private partnerships that the Defense Department is pursuing with Silicon Valley.

Of course, the federal government’s data and technology focus is not solely focused on national security. From a law enforcement perspective, Big Data is also subject to consumer protection and privacy scrutiny. Since the release of its report in May 2014 advocating changes and legislation related to the practices of data brokers, the Federal Trade Commission has placed in its crosshairs data-broker companies that buy and sell consumers’ sensitive personal information. In early August 2015, for example, the FTC filed suit in federal court in Nevada against two data broker companies that allegedly bought hundreds of thousands of consumer payday loan applications and then sold the data to third parties with no legitimate need for the information. See Federal Trade Comm’n v. Sequoia One, LLC, et al., No. 15-cv-1512 (D. Nev.). The FTC alleged that the third parties, in turn, stole millions of dollars from the payday loan consumer applicants. The FTC has settled with three of the individual defendants in the case, but not the corporate defendants.

Implications

In this rapidly changing enforcement environment, the implications for Big Data and the companies that rely on it cannot be overstated. Recent actions and policies suggest that state and federal regulators will continue to apply core enforcement priorities (whether grounded, for example, in consumer protection, antitrust or privacy law) to companies in the technology space.

But Harris’s latest announcement also shows the extent to which regulators are turning to technology itself to expand law enforcement’s approach to its work. The federal government—from the FTC to the Defense Department—has followed this path as well on issues with national security and consumer protection implications. For the foreseeable future, this evolution could signal the government’s desire to use the private sector—especially the technology industry—to collect and share data of various kinds for law enforcement purposes beyond the ordinary search warrant/prosecution scenario.

Companies that collect or maintain consumer information and behavior data will likely be a focus for local, state and federal government agencies, which raises important considerations such as ensuring sufficient transparency to avoid needless private lawsuits alleging unfair business practices and implementing controls to protect valuable trade secrets.

The era of Big Data is here, as is the new age of the government’s use of data to carry out its law enforcement functions.