Kyle did not know about the database. Not when he was staying up all night spray-painting elaborate graffiti across Imperial Beach, a little San Diego suburb just north of Tijuana, Mexico. Not when he would sit, watching from afar, as public works employees painted over his work. Not even when he was getting booked in San Diego County Jail.
He had started tagging in his early teens as part of learning to cope with a severe case of depression. Graffiti was fun and it was expressive and it made him feel better. He’d practice on planks in his backyard, and as he got older, he began tagging buildings more and more. This was his first time getting caught, and while he felt like an idiot, he wasn’t all that worried.
He had friends who had been caught tagging before, and none of them spent more than a couple days in jail. “Worst-case scenario,” he thought, “I’ll get a couple weeks and some community service.” Then he went into court and learned the charges: “I just went totally numb,” he told me.
The county was not charging Kyle with one count of vandalism. They were charging him with 218. He faced multiple years in prison.
Unbeknownst to Kyle, the sheriff had been keeping tabs on him and every other tagger in the city. It was 2010, and the San Diego County Sheriff’s Department had recently rolled out a database called GraffitiTracker—software also used by police departments in Denver and Los Angeles County—and over the previous year, they had accumulated a massive set of images that included a couple hundred photos with his moniker. Painting over all Kyle’s handiwork, prosecutors claimed, had cost the county almost $100,000, and that sort of damage came with life-changing consequences. Ultimately, he made a plea deal: one year of incarceration, five years of probation, and more than $87,000 in restitution.
Criticism of police technology often gets mired in the complexities of the algorithms involved—the obscurity of machine learning, the feedback loops, the potentials for racial bias and error. But GraffitiTracker can tell us a lot about data-driven policing in part because the concept is so simple. Whenever a public works crew goes to clean up graffiti, before they paint over it, they take a photo and put it in the county database. Since taggers tend to paint the same moniker over and over, now whenever someone is caught for vandalism, police can search the database for their pseudonym and get evidence of all the graffiti they’ve ever done.
In San Diego County, this has radically changed the way that graffiti is prosecuted and has pumped up the punishment for taggers—many of whom are minors—to levels otherwise unthinkable. The results have been lucrative. In 2011, the first year San Diego started using GraffitiTracker countywide (a few San Diego jurisdictions already had it in place), the amount of restitution received for graffiti jumped from about $170,000 to almost $800,000. Roughly $300,000 of that came from juvenile cases. For the jurisdictions that weren’t already using GraffitiTracker, the jump was even more stark: The annual total went from $45,000 to nearly $400,000. In these cities, the average restitution ordered in adult cases went from $1,281 to $5,620, and at the same time, the number of cases resulting in restitution tripled. (San Diego has said it makes prosecuting vandalism easier.)
Almost a decade later, San Diego County and other jurisdictions are still using GraffitiTracker, yet it’s received very little media attention, despite the startling consequences for vandalism prosecution. But its implications extend far beyond tagging. GraffitiTracker presaged a deeper problem with law enforcement’s ability to use technology to connect people to crimes that, as Deputy District Attorney Melissa Ocampo put it to me, “they thought they got away with.”
Many cities already have automatic license plate readers attached to traffic cameras, letting police track vehicles’ whereabouts. According to the Georgetown Law Center on Privacy and Technology, as of 2016, at least five major American police departments either “claimed to run real-time face recognition off of street cameras, bought technology that can do so, or expressed a written interest in buying it.”
With each new tracking technology comes untold possibilities for creative startups like GraffitiTracker to connect people to their past actions— and in the process, to silently raise the punishment that can be expected for petty crimes. Without much discussion, the semi-intended consequence of a bureaucratic IT project, law enforcement databases can act as legislation by another name. We must reckon now with what it means when technology, not law, can dictate the relationship between crime and punishment.
According to a list of “recent Graffiti Tracker successes” given to a few San Diego city councilmembers in 2010, the police searched one minor’s home as part of a separate case and found the word “SLAY” written over and over on his bedroom walls. Using GraffitiTracker, they were able to link him to 132 paintings with “SLAY” in them, and the court ordered the child and his family to pay the city almost $60,000.
Another juvenile’s car was searched during a “routine contact,” and while looking through his notebook, police found sketches that linked him to 28 incidents of graffiti. That was enough to seek $10,000 in restitution.
For comparison, $10,000 is also the maximum fine allowed by California law for crimes that include robbery and rape. So it seems hard to imagine that lawmakers would choose for an $87,000 fine to be the possible consequence of a first-time graffiti arrest. But lawmakers didn’t have to choose. Without any change to the law, and without any of the democratic processes that a change in the law would entail, the typical punishment for vandalism in San Diego County suddenly grew to draconian proportions.
By erasing the distinction between being caught once for vandalism and being caught many times, GraffitiTracker radically changed the relationship between the crime and the punishment. In that sense, it’s as if the next time you were pulled over for speeding, the officer downloaded your car’s GPS history and gave you tickets and points on your license for all the times you’ve sped in the past year.
And this happened without anyone even knowing that the rules have changed—without the kids painting on walls in San Diego knowing that they are now risking punishment they will not easily recover from.
It’s been almost 10 years since Kyle was arrested. He’s still paying off the last of the loans he had to take out to pay the fines—his parents “took a huge hit” but were able to help a lot, thank God—but after a lot of work, he’s managed to turn graffiti art into a career. He laughed as we talked about his cushy new job: Big corporations love his graffiti, and he gets paid to make murals for places like Microsoft and Adidas. Bouncing back from his sentence has been a long, slow process though. In order to survive behind bars, he had to transform: “Somebody talked to me funny, I had to punch them. Somebody cuts me in line, I had to jump them. A guy’s getting stabbed, it’s whatever—I didn’t care. I never thought I would be that person.”
Parole wasn’t much easier. Even once he got out, he was under heavy surveillance by the Gang Supervision Unit, which Kyle says would sometimes confiscate his art supplies and even his school notebooks if they contained doodles. After he was released, he says, “It was five or six years before I really felt OK.” Back when he was a kid, running around with his paint cans, he’d always worried about getting caught—he didn’t want to get in trouble. “But the thought of how much trouble I’d get into—not at all. I had no idea.”
Is it wishful thinking to imagine this all going down differently? San Diego’s laws were designed in a world where when someone was arrested in the act of tagging, it was impossible to know if they did it all the time or, less likely, had bad luck on their first night out. When San Diego law enforcement first acquired GraffitiTracker, that changed. Maybe sentences like Kyle’s were the goal all along, but maybe the laws could have changed with the circumstances. Could new punishments take the database into account, without first-time graffiti arrests suddenly going from a wake-up call to a life-shattering event?
But GraffitiTracker was adopted independently of the law: All that followed is a testament to the what’s wrong with that independence. So long as we let technology lead while the law follows behind, who knows where we’ll end up.
Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.