Controlling the Surveillance State 

A new report from the ACLU shows that local law enforcement agencies have been spending big bucks on surveillance technology — and offers recommendations on how to rein in the spending.

California cities and counties have spent more than $65 million on surveillance technologies in the past decade while conducting little public debate about the expenditures, according to a new report published this week by three American Civil Liberties Union chapters in the state. Public records reviewed by the ACLU also indicate that though cities and counties in California bought surveillance technologies 180 instances, they only held public discussions about the proposals just 26 times.

The technologies examined in the report included automated license plate readers, closed-circuit video cameras, facial recognition software, drones, data mining tools, and cellphone interception devices known as ISMI catchers or stingrays. The report analyzed purchases by 59 cities and by 58 county governments in California. In many instances, city and county officials used federal grant money to make the purchases, and then asked local legislative bodies to rubber-stamp their decisions. "We long suspected California law enforcement was taking advantage of federal grant money to skirt official oversight and keep communities in the dark about surveillance systems," said Nicole Ozer, the technology and civil liberties director for the ACLU of California.

The report also found that only one-third of the cities and counties surveyed had privacy policies to prevent law enforcement abuse.

The ACLU report also includes a model ordinance that would require a public process and official legislative approval by local governments before law enforcement could purchase or use surveillance technologies that could impact the privacy of community members. Santa Clara County Supervisor Joe Simitian and San Francisco Supervisor John Avalos planned to announce on Wednesday their intention to introduce versions of the ACLU's ordinance to their respective legislative bodies. In an interview, Avalos said he believes the proposed ordinance is a long overdue response to an alarming trend. "The level of surveillance in our society has increased dramatically over the past fifteen years and has gotten notably worse under the Obama administration," Avalos said. "There's technology out there that is available for cops to pick up ... and it's not clear to me how the technology will be used or useful."

Avalos also stated that the purchase and use of such equipment is an alarming example of mission creep. "SFPD [San Francisco Police Department] and other police departments are developing an intelligence-gathering capacity beyond what their mission should be," he said, adding that he is concerned that city policing policy is being driven by technology and equipment purchases that are not currently under the control or oversight of elected officials.

This is not the first effort to regulate the use of surveillance technology by Northern California law enforcement. An ad-hoc advisory committee formed in Oakland to oversee the drafting of the city's privacy policy for the Domain Awareness Center has recommended similar legislation to city councilmembers (see "Oakland's Surveillance Fight Continues," 7/22/14). Oakland's proposed ordinance would carry a $5,000 penalty or result in a misdemeanor for anyone found to have violated the city's guidelines. In October, the City of San Carlos rejected a proposal to buy license plate readers on the grounds that the threat to civil liberties and privacy posed by the tracking technology outweighed any potential public safety benefits.

The ACLU's model ordinance would establish a process for public debate and a consideration of the types of technologies being considered for purchase. The ordinance also would cover the use of surveillance technologies shared between law enforcement agencies, including those employed by fusion centers, such as the Northern California Regional Intelligence Center, which coordinates the sharing of Stingrays owned by police in Oakland and San Francisco and maintains a centralized database of license-plate-reader data from dozens of Northern California agencies. Equipment obtained through private charities such as police foundations would also be covered under the model ordinance. Last month, ProPublica revealed the role of police foundations in New York City and Los Angeles in purchasing surveillance technology that was outside the oversight of local elected officials.

The ACLU report noted that many surveillance tools are being purchased and deployed without consideration of long-term costs associated with maintaining and using such equipment. "The fiscal impact of surveillance can far exceed initial purchase prices for equipment," the report stated. "Modifying current infrastructure, operating and maintaining systems, and training staff can consume limited time and money even if federal or state grants fund initial costs. Surveillance technologies may also fail or be misused, resulting in costly lawsuits. Looking beyond the sticker price is essential."

Many communities have purchased costly systems that are intrusive and don't address the issues that residents believe are important. "The federal funding streaming down from Washington has sidestepped thoughtful considerations of what makes sense for communities," Ozer said, noting that Oakland received millions of dollars for its Domain Awareness Center, yet received much smaller grants for its successful Operation Ceasefire program.

Avalos said he is in discussions with SFPD Chief Greg Suhr over the proposed ordinance, and is looking forward to hearing the input of his colleagues. "We want a public process around this issue before we enter into the legislative work," Avalos said.

He is particularly disturbed by the SFPD's use of devices that capture information from cellphones, like stingrays, and is looking forward to a full accounting of the police department's technology and policies. Surveillance, Avalos said, "is a broad way of controlling behavior, [and] that is not an American or San Francisco value."

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