California Communities Respond to Police Surveillance Purchases with Oversight Ordinances

Constitution in Crisis :: BORDC/DDF June 2016 Newsletter
June 1, 2016
Protest Permits: Announced in Philadelphia and Undecided in Cleveland
June 3, 2016

Update: On June 7, the Santa Clara County Board of Supervisors unanimously passed the Surveillance Technology Ordinance, requiring public discussion before the police buy any spy equipment.

In San Jose, the police department purchased a drone without notifying the public or the City Council. The police department did not have to disclose its purchase, since the drone was obtained through a Homeland Security grant rather than funds appropriated by the city.

In Oakland, the government was preparing to go forward with a Domain Awareness Center that would have allowed for citywide surveillance using public and private cameras. The city only had to scale back its program after public outrage.

Incidents like these have ignited a debate across California about surveillance practices and the equipment used to perform them, sparking discussion about facial recognition databases, drones, stingrays, and license-plate readers.

Members of the Santa Clara County Board of Supervisors have responded to public concern by attempting to pass the Surveillance Technology Ordinance, which is geared towards expanding law enforcement transparency and establishing a dialogue with the public about how surveillance technology is used. BORDC/DDF supports the ordinance, as it will set a nationwide precedent for establishing and maintaining a government-citizen dialogue on balancing surveillance technologies and civil liberties.

In 2014, the American Civil Liberties Union of Northern California encouraged state municipalities to draft ordinances that addressed the growing concerns of California residents about surveillance technology. The ACLU of Northern California provided a template called the Surveillance and Community Safety Ordinance that communities could use as their foundation in advocating for transparency. Joe Simitian, a current Santa Clara County Supervisor, responded eagerly to the model ordinance and proposed the Surveillance Technology Ordinance. In remarks about the ordinance Simitian stated, “It’s important to acknowledge that privacy protection and public safety are not mutually exclusive. We can craft an ordinance that respects and reflects concerns on both sides.”

The Surveillance Ordinance would enact a number of basic accountability measures. First, the ordinance would require the circulation of a comprehensive Surveillance Impact Report. The report would be provided to the public prior to the purchase of any surveillance technology, and would help to facilitate an informed public debate on the costs and benefits of the purchase. Second, the ordinance would have the Santa Clara County Supervisors decide if the benefits of having the technology outweighed the potential cost to civil liberties. Third, the Board of Supervisors would have the power to approve a Surveillance Use Policy that would be legally enforceable. Law enforcement compliance with these measures would be monitored through annual reporting and public reviews conducted by the Board.

The Surveillance Ordinance seeks to implement many of the same measures proposed in the BORDC/DDF’s Local Civil Liberties Protection Act (LCLPA), which is a model ordinance that can be used by state legislatures and local city councils. The Surveillance Ordinance would adopt the same policies regarding public notice before equipment purchase and approval from the City Council following public discussion. However, the LCLPA goes into even more detail about what would be lawful for each specific surveillance technology. For example, the use of drones for surveillance would only be permissible if a warrant was obtained based on probable cause, and drone use would be prohibited in the cases of crowd-control and collecting information on individuals participating in political demonstrations. A provision in the LCLPA also mandates that law enforcement receive training on the ordinance if passed. This mandatory training would help ease the fears of law enforcement, who predict officers will be unfairly penalized for not understanding the complex Surveillance Use policies.

The Surveillance Ordinance has been met with opposition from the district attorney and the sheriff, who have both expressed concerns that the ordinance impairs their ability to carry out their constitutional duties. District Attorney Jeffrey Rosen sent a letter to the supervisors detailing his fear that the ordinance will impede law enforcement’s chances of capturing criminals. Rosen goes on to say that the ordinance is dangerously ambiguous in its use of the term “surveillance technology”, and then asks if patrolling the web for things like child pornography and terrorist threats would qualify as surveillance. Rosen closes his letter by saying that the ordinance “misunderstands the role of a county board of supervisors in criminal justice matters” and oversteps its jurisdiction into what should be regulated by the state.

Rosen’s concerns about undue interference can be dispelled by looking closely at what the ordinance actually has the power to do. For example, at no point does the ordinance explicitly forbid the purchase of a specific type of surveillance equipment. The ordinance merely requires public discussion and a basic cost vs. benefit analysis. If the public and the Board of Supervisors decide that a piece of technology would benefit their community (which they almost certainty would do if the technology was solely intended to prevent the distribution of child pornography) then the purchase of that technology would be approved. Individuals and government reflexively favor security over privacy, so for a piece of technology not to be approved the potential for civil liberties violations would have to be grievous.

The definition of surveillance technology within the ordinance is as ambiguous as the scope of technology requires it to be. The ordinance does its best to state outright every example of the kinds of technology that need review, and it is still riddled with gaps. The Electronic Frontier Foundation has even proposed an amendment that would add criteria that are missing from the definition, including biometrics and devices that retain communications. The purview of surveillance technologies is so wide-ranging (from olfactometers that measure the concentration of cannabis in the air to drones) that constructing a definition requires making some generalizations.

The Surveillance Ordinance is only one example of a privacy measure introduced by Simitian. In 2001 when Simitian was a member of the state assembly, he introduced legislation that required companies to to tell their costumers when the company’s data had been breached. Today 46 states have similar legislation on the books. Simitian’s work is an excellent case study of how one individual in local or state government can dramatically impact national policy, especially when this ordinance has the potential to be one of the most pro-privacy measures passed in the United States.

The vote on the Surveillance Ordinance is scheduled to occur on June 7.