From Tenth Amendment Center
OAKLAND, Calif. (May 21, 2018) – Last Tuesday, the Oakland City Council gave final approval to a local ordinance that sets the stage to limit the acquisition and use of spy gear by law enforcement and other city agencies.
The new ordinance ensures there will be public notice and debate before the city acquires or uses surveillance technology. Specifically, the new law requires all city entities to seek city council approval before purchasing or using any new surveillance technology or equipment, and before accepting grant funds for such gear. The new law creates a multi-step process. City agencies, including police, must submit a “surveillance use policy” to the Privacy Advisory Commission for consideration. The city council must then adopt the approved policy the technology can be purchased or operated. The ordinance includes specific criteria the city council must consider in order to determine if the benefits of the technology outweigh the costs.
The ordinance requires that current surveillance technology must undergo a similar public review and approval process.
The new law specifically includes provisions that forbid non-disclosure agreements and protect whistleblowers. It also requires an “Annual Surveillance Report” detailing how surveillance approved technologies were used, how data was collected and whom that data was shared with.
ACLU of Northern California leadership development manager Tessa D’Arcangelew called it the strongest such ordinance in the country, saying it gives “Oakland communities the power to understand the technologies that are being proposed in the city and to have a voice in saying if, when and how surveillance is used in the city.”
The Oakland City Council unanimously passed the ordinance Tuesday. It went into immediate effect.
A similar ordinance passed in Santa Clara County in 2016. Berkeley and Davis passed similar measure recently. These ordinances were based on model legislation developed by the ACLU with input from the Tenth Amendment Center. Berkeley is one of multiple cities that introduced measures as part of the #TakeCTRL initiative.
A bill moving through the California legislature would mandate a similar process throughout the state. SB1186 would require a local law enforcement agency to draft a Surveillance Use Policy for each type of surveillance technology it operates and the information collected. It would then have to submit the policy to its governing body for approval at a regularly scheduled hearing, open to the public. If the plan is not adopted, the law enforcement agency would be required to cease using all surveillance technology within 30 days. The proposed law would require law enforcement agencies to amend their use policies for any new surveillance technology they acquire in the future, subject to the same approval requirements. Without approval, the agency could not use the new technology.
Impact
Local police have access to a mind-boggling array of surveillance equipment. As it now stands, many law enforcement agencies can obtain this high-tech, extremely intrusive technology without any approval or oversight. Police often operate highly intrusive surveillance technology in complete secrecy.
The federal government facilitates local surveillance through grants and other funding sources for this spy-gear, meaning local governments can keep their purchase “off the books.” Members of the community, and even elected officials, often don’t know their police departments possess technology capable of sweeping up electronic data, phone calls and location information.
In some cases, the feds even require law enforcement agencies to sign non-disclosure agreements, wrapping surveillance programs in an even darker shroud of secrecy. We know for a fact the FBI required the Baltimore Police Department to sign such an agreement when it obtained stingray technology. This policy of nondisclosure even extends to the courtroom, with the feds actually instructing prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported, a Baltimore detective refused to answer questions about the department’s use of stingray devices on the stand during a trial, citing a federal nondisclosure agreement.
As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”
Ordinances like the one approved in Oakland create a framework of oversight and transparency for surveillance programs. They also set the stage to limit surveillance by giving residents input into the process and allowing them to oppose and stop the purchase of spy-gear.
Impact on Federal Surveillance
Passage of local ordinances not only protects the privacy of people in that area. They also undermine the federal surveillance state. The federal government funds much of the surveillance technology acquired by state and local law enforcement. In return, federal agencies tap into the data swept up by these agencies through information sharing agreements and fusion centers. Information gathered by your local police department often ends up permanently stored in federal databases. These create the backbone of the federal surveillance state.
The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, local data collection using ALPRs, stingrays and other technologies create the potential for the federal government to track the movement of millions of Americans, and obtain and store information on millions of Americans, including phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.
According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.
By facilitating local surveillance, the federal government undoubtedly gains access to a massive data pool on Americans without having to expend the resources to collect the information itself. By requiring approval and placing the acquisition of spy gear in the public spotlight, local governments can take the first step toward limiting the surveillance state at both the local and national level.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. This represents a major blow to the surveillance state and a win for privacy.
Passage of an ordinance in one locality may not seem significant. But when multiplied over hundreds of cities and counties across the United States, this strategy could seriously undermine federal surveillance programs. If local police can’t collect and share the data, it cannot end up in federal databases.
Mike Maharrey
May 21, 2018 at 11:30AM
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