New App Fights Back Against Police Carding
A new smartphone app has been developed to guide and assist members of the public through often difficult and contentious police interactions.
LegalSwipe is a free app, available on both the iTunes and Android markets. It provides step-by-step interactions through a decision tree, prompting the user to ask specific questions such as whether they are under arrest. It then tells the user what they should or should not be doing or saying with these police interactions.
The app is the brainchild of Christien Levien, a law student who completed his articles in criminal law and is currently studying for the bar exam. The inability of many of the individuals he has encountered who simply do not know how to properly interact with law enforcement is what prompted the initiative. Levien states,
After doing legal rights workshops in various communities, what I found was those who have the least understanding of what their rights are, are most likely to have them violated.
The app also provides a function to record video and audio of the entire exchange, a feature which could be essential in any subsequent questions or litigation over an unlawful arrest or search. In case the phone is seized by the police, the app sends this media file to a cloud-based Dropbox account, where it can be retrieved at a later date. An emergency notification system, contacting a pre-designated individual, can also get assistance to a person under arrest in a timely fashion.
LegalSwipe is not just a useful tool for the public, but it should assist counsel and even law enforcement. In addition to providing objective evidence about what has transpired in these interactions, it explicitly directs the user to obtain legal advice in certain situations such as an arrest.
Law enforcement could benefit because it potentially defuses a contentious interaction. By providing a user a script of tight questioning, and a legal framework for them to follow, they avoid the often heated, confusing, distrustful exchanges that occur with individuals who are being detained or arrested.
Although the app has already been designed to operate with both Canadian and American law, there is particular interest in it from the community where it emerged. The Toronto Police have been under scrutiny for a tactic they refer to as “community engagement,” which they describe as “an incredibly effective tool.” The public simply refer to the practice as “carding,” based on a contact card that is filled out due to the stop.
The police stop and question members of the public and enter this information into a database, including demographic information and social contacts. The networks of contacts are used by the police to identify potential criminal associates and criminal behaviour. The problem is that most of these stops are not necessarily justified on reasonable suspicion, and certain members of the public are stopped more than others.
An investigation by the Toronto Star of 1.2 million people entered into this database between 2008-2013 revealed that the individuals stopped were more likely to be African-Canadian. The majority of these did not involve an arrest or any charges.
Desmond Cole, who spoke at the LegalSwipe launch last night, detailed in Toronto Life some of the continuing challenges:
In late March, the TPS revamped their carding policy… But when you look at the fine print, it’s clear that little has changed. Under their new procedures, police do not have to inform civilians that a carding interaction is voluntary, that they can walk away at any time. Cops won’t be required to tell civilians why they are being stopped, and their internal justifications for a stop are so broad they might as well not exist. Worst of all, the database where police have been storing this information will still be used.
The widespread opposition to carding has led to the mayor promising the practice will end.
Toronto has a troubled relationship with law enforcement generally in the recent past. The G20 summit in 2010 led to many police abuses that continue to be explored and investigated in court. The Occupy Toronto movement, in contrast, had far less contentious exchanges with the police, largely due to a strong contingent of legal observers of the eviction process.
Instead of depending on lawyers to instantaneously appear on the spot and guide the public when encountered by the police, or monitoring public protest situations that may become contentious, this technology has the potential to strengthen our civil liberties and increase our public confidence in law enforcement.
Police accountability is not a negative thing. It demonstrates that nobody is above the law – including those who are tasked with enforcing it.
Counting the seconds to the inevitable backlash by criminal lawyers who feel threatened by this app.
Nah. Criminal lawyers won’t be worried. I can’t see much of a use case here. No one will memorize the script. And it’s just not believable that someone stopped will pull out the phone, find the app, and start reading out loud. It may be that some people will deliberately coat trail and catch carders that way, but such people wouldn’t need the app anyway. Community education is what’s wanted. The app might help here. But expecting effects from this one app is too optimistic. Smart phones alone, with their video capabilities, are the effective power. So when you’re stopped you just have to hope you’ve got a buddy who can film the encounter and not have his phone confiscated.
I agree, one of the main challenges is that it’s not entirely practical to use it while actually being questioned by the police. Given the decision in Fearon, it may actually be counterproductive to not lock your phone immediately on being stopped.
I can see a use here in doing education through role playing. The video storage in Dropbox would be useful for situations where there are mass arrests, and perhaps limited time before a police officer approaches the individual being arrested.
This is the first version of the app, and I know they are already developing additional features and even versions in other languages. It’s a step in the right direction, and we will see where LegalSwipe and other public-oriented technological innovations lead.
great article Omar. This is app is a positive for Criminal lawyers. I agree that phone should be locked and you can record video while phone is still locked btw.
As a criminal defence lawyer, I don’t feel any sort of threat for an app like this. Indeed, in principle, it is a very good idea. However, what happens when police interact with people and what the law states are two very different things. To look at one of the best examples, look to the controversy over G20. In short, knowing the law does nothing to stop whatever the police at that particular moment feel entitled to do.
The danger with this app is that it may appear to police as obstructionist and result in further escalating a situation that might otherwise be mitigated. If police are on the verge of charging someone, they will do so and explaining what rights of the suspect may or may not exist is not efficacious at that moment.
If anything, criminal lawyers will generally benefit from the use of this app as it will only create more acrimony and run the risk of further and more serious charges – even to those bystanders who may be using it to film and arrested for obstructing police.
To be clear, I do not for a moment hold the view in law that filming a police interaction or reading off one’s rights is obstructionist as a matter of law and should never warrant charges; however, I practice in a world where I argue on a daily basis why police overreacted and the charges ought to be withdrawn. What I do appreciate though is that being charged is a terrible experience and staying silent (rather than fiddling with an app) may either a) reduce the chance of engaging the criminal justice system, or b) protect your rights once you do so.
The additional concern with the app is that under R. v. Fearon (SCC), there is now a right for police to search phones incident to arrest. Therefore, during the course of an arrest you are playing with your phone, police will likely be justified in concluding at that moment that the phone may contain evidence relating to the crime (a overly broad standard set by R. v. Fearon). This of course could result in other charges depending on what is on someone’s phone.
The interaction with police upon arrest is a terrifying, powerless, and volatile situation for any individual. The immediate reaction should not be to start using an app, but to call an experienced criminal defence lawyer (as you are permitted by law and our constitution to do so). That lawyer can apply their knowledge and experience in providing advice to the particular situation that is always different. You have a right to a lawyer upon arrest or detention, not an app – until the Charter changes, it is prudent to exercise your existing rights.