No more Policymaking by Procurement

Privacy Groups and Cities fight back against Pervasive Surveillance

This article first appeared in the NMA quarterly magazine Driving Freedoms Summer 2018.

With no checks and balances, local law enforcement should not be spying on citizens. A number of cities, with the help of privacy groups and the American Civil Liberties Union (ACLU), are opposing and succeeding by creating local ordinances supporting transparency and accountability in the use of surveillance and data-gathering technology.

Since 9/11, local law enforcement agencies have had access to massive federal grants that allow police to use new surveillance tools. These devices include Stingrays (cell phone trackers), facial recognition cameras, automatic license plate readers (ALPRs), drones, social media analytics, gunshot-locators, predictive policing algorithmic systems and surveillance cameras of all kinds. Police departments have generally been able to procure these items without the scrutiny of elected officials or transparency to the public at large.

Without oversight, surveillance devices can be used by police to violate free speech rights, target minorities and spy on those who peacefully dissent. Of course, intrusive surveillance can also waste taxpayer money and feed the growth of statewide and national databases gathered on citizens whether they are criminal suspects or not.

Over the last five years, a growing number of communities have passed laws preventing enforcement agencies from creating policies by procurement. Instead, city councils have worked with citizens to create limits on the use of police surveillance. These municipalities include Nashville, Tennessee, Seattle, Washington, Somerville, Massachusetts, and the California cities and counties of Berkeley, Davis, Oakland, and Santa Clara County. In June, the St. Louis, Missouri, city council announced it will soon work on its own ordinance.

The ACLU has led this work with a coalition called Community Control over Police Surveillance. Spearheaded by 17 organizations in addition to the ACLU, they have created a model bill to establish ordinances to control, limit and oversee the use of these technologies. The ACLU’s Northern California affiliate has also published a guide for local governments to help them extend policies of “privacy localism” even further.

The coalition announced support of California SB 1186 which passed the Senate in late May and is currently in the Assembly. If passed, SB 1186 would help restore oversight at the local level and permit residents to be heard when governments pitch surveillance proposals in the name of public safety.

Cities and counties developing their own ordinances generally address three key issues:

  • AccountabilityRequires approval by local government prior to acquisitions or deployments of surveillance technology.
  • TransparencyAfter procurement and deployment, public agencies will file a report on how the technology is used and its expected benefit to the community and its cost relative to this benefit.
  • Community ParticipationNeeds to build a local policy framework that accepts both public and expert input.

For example, Seattle’s ordinance applies to any technology (cameras exempted) that observes or monitors individuals “in a manner that is reasonably likely to raise concerns about civil liberties, freedom of speech or association, racial equity or social justice.” All technologies need approval from the city council to ensure that departments only acquire tools that are appropriate and cost-effective. Council approval also includes a check of secret adoption or improper use of surveillance.

For transparency, Seattle, Berkeley, Oakland and Santa Clara County require law enforcement to publish reports on when and how frequently the technology was used and how the data was shared. The three cities also require reporting on the impact these technologies have on particular communities of color, ethnicity and minority religions. Oakland has gone even further by prohibiting nondisclosure agreements with vendors and allowing for the protection of any future whistleblowers.

Oakland has a permanent Private Advisory Commission that provides the city with information regarding technical matters and data collection privacy issues. The commission is charged with issuing annual reports on how surveillance technologies were used, policies that govern their use and the type of data collected. The commission can also hold public hearings.

Brian Hofer, a member of the citizen group Oakland Privacy, helped draft Berkeley’s ordinance and in March wrote this for the local newspaper:

“In the current political climate, California privacy advocates say it is more critical than ever that the amount of surveillance and personal data collected be the bare minimum, to ensure the safety of our community from unlawful and inhumane targeting.”

Even without public commissions, input from the public is critical. For example, the California city councils of San Pablo and Alameda canceled planned expansion of ALPR use after holding a public meeting and listening to residents’ concerns. In Santa Clara County, elected officials listened to citizen concerns about surveillance and police body cameras. The commissioners voted to prohibit facial recognition with these devices.

Transparency taken to extremes can run amok. Case in point: the Newark, New Jersey, police department recently installed 62 surveillance cameras that streams footage to a public online portal. This is reality TV at its most dreadful…real-time spying of citizens going about their business. The department did this to build trust between the police and the community. The stream went live on April 26 and the next day 662 people logged into the site according to the mayor’s office. The department calls this project, Citizen Virtual Patrol. The first 60 days are a test phase and the ultimate goal is to install a total of 300 cameras across the city.

In 2017, the Newark PD received an award for community policing from the NJ Attorney General even though the department is under a consent decree from the US Department of Justice (DOJ) on its stop, search and arrest policies. The department is currently overseen by an independent monitor that meets quarterly with the public. Newark also received a $700,000 DOJ Smart Policing Initiative grant to create the Citizen Virtual Patrol which will cost $1 million annually to maintain.

Prominent companies are also becoming more involved in the surveillance arena. Amazon recently came under fire when it was revealed that the online shopping giant was pitching its facial recognition program called Rekognition to police departments. Forty-one privacy and civil liberty groups cosigned a letter in May asking Amazon to terminate its program. From the letter:

“This product poses a grave threat to communities, including people of color and immigrants, and to the trust and respect Amazon has worked to build. People should be free to walk down the street without being watched by the government. Facial recognition in American communities threatens this freedom.”

100 employees of Amazon also recently sent a letter to the CEO asking for the same result.

Smart cities are coming to America. Smart street furniture such as streetlights may soon monitor your every move. Drones may monitor traffic and traffic violations. In China, crosswalks with facial recognition cameras shame you publicly if you jaywalk. Many US towns are scrambling to place ALPRs at all their entry and exit points to monitor who is coming in and going out of town.

As cities become smarter, they also need to become more accountable and transparent with their use of surveillance techniques that are meant to keep us safer. Supposedly.

Otherwise, we will be living in the novel wastelands of 1984 and Brave New World.

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