In the wake of the MRAP controversy in Davis, a report from the ACLU has found that California local governments have spent more than $60 million on spying technology. In the wake of that report, the ACLU is calling for the state’s large municipalities to enact ordinances requiring public evaluation before police agencies acquire and utilize new high-tech equipment.
Last week, the ACLU released its report that walks communities through the questions that need to be asked and answered when any surveillance technology is being considered. The centerpiece of the report is a model Surveillance & Community Safety Ordinance for communities to adopt that will provide necessary community participation, transparency, accountability and oversight.
“Local law enforcement has been taking advantage of millions of federal surveillance dollars streaming into California to sidestep the normal oversight process of city councils and boards of supervisors and keep the public in the dark about important community decisions,” said Nicole Ozer, technology and civil liberties policy director for the ACLU of California. “After revelations of mass surveillance by the NSA, the public isn’t buying the ‘just trust us’ approach anymore. The public expects to know why surveillance is being considered, how it is going to be used and what safeguards are in place to guard against misuse before any decisions are made.”
The ACLU’s research helped reveal this past August that the San Jose Police Department had secretly obtained a drone with federal funding, with no public debate and no policy safeguards in place. After protests from community members, the police department apologized and has grounded the drone and initiated a public outreach process.
“Law enforcement agencies shouldn’t make decisions about whether or not to use surveillance technologies in secret. The public has a right to know how they’re being policed,” said Peter Bibring, police practices director for the ACLU of California. “High-tech surveillance tools can too easily be abused when the public is kept in the dark, and police transparency is key to maintaining the public’s trust.”
The Council on American-Islamic Relations and Asian Americans Advancing Justice-Asian Law Caucus have also both joined with the ACLU to endorse the need for ordinances like the one the ACLU is proposing. Unchecked surveillance often has a disproportionate impact on communities of color and religious minorities.
“Communities are increasingly concerned about making sure that time, energy and resources are not spent on expensive, ineffective and overly intrusive surveillance systems that create more problems than they solve,” Avalos said. “That’s why public transparency and engagement are key to any decision about whether to use surveillance technology. If surveillance technology is to be used, clear rules must be in place to ensure transparency, oversight and accountability.”
According to the ACLU’s research, only five of the 90 communities studied held a public debate each time they rolled out a new surveillance technology. And less than five percent of the communities the ACLU studied have a publicly-available use policy for every surveillance technology that they use.
The Davis City Council, in dealing with the MRAP, created policy for acquisitions under the federal 1033 Program.
The council unanimously voted to implement the policy that specifies:
- The Police Chief is authorized to procure small tools and equipment including, but not limited to, items such as furniture, range supplies, uniform equipment and clothing, firearms, computers, printers, radios, electronics, binoculars, ballistic helmets and vests.
- City Manager authorization is required if the annual maintenance cost of any piece of or set of equipment is more than $10,000 or will have significant impact upon an internal service fund, or its acquisition will require a subsequent appropriation for maintenance.
- City Council authorization is required for the procurement of vehicles, drones, and aircraft.
That comes pretty close to meeting the recommended policy guidelines from the ACLU.
KEY PRINCIPLES OF THE MODEL ORDINANCE
- Informed Public Debate at Earliest Stage of Process: Public notice, distribution of information about the proposal and public debate prior to seeking funding or otherwise moving forward with surveillance technology proposals.
- Determination that Benefits Outweigh Costs and Concerns: Local leaders, after facilitating an informed public debate, expressly consider costs (fiscal and civil liberties) and determine that surveillance technology is appropriate or not before moving forward.
- Thorough Surveillance Use Policy: Legally enforceable Surveillance Use Policy with robust civil liberties, civil rights, and security safeguards approved by policymakers.
- Ongoing Oversight & Accountability: Proper oversight of surveillance technology use and accountability through annual reporting, review by policymakers and enforcement mechanisms.
The ordinance text would expand the city’s own policy on number three to include surveillance technology.
The text reads: “The [Council/Board of Supervisors] finds that any decision to use surveillance technology must be judiciously balanced with the need to protect civil rights and civil liberties, including privacy and free expression, and the costs to [City/County]. The [Council/Board] finds that proper transparency, oversight and accountability are fundamental to minimizing the risks posed by surveillance technologies. The [Council/Board] finds it essential to have an informed public debate as early as possible about whether to adopt surveillance technology. The [Council/Board] finds it necessary that legally enforceable safeguards be in place to protect civil liberties and civil rights before any surveillance technology is deployed. The [Council/Board] finds that if surveillance technology is approved, there must be continued oversight and annual evaluation to ensure that safeguards are being followed and that the surveillance technology’s benefits outweigh its costs.”
Nicole Ozer has noted that, up and down the state, “basic transparency and accountability is the exception, not the rule.”
In their report, the ACLU released data from counties and cities throughout the state that shows the types and quantities of surveillance equipment used by police agencies. These include automatic license-plate readers, body-worn cameras, use of facial-recognition databases, video-surveillance networks, and the more controversial drones and cell tower mimicking devices that cast an electronic net for cellphones in a given area.
Yolo County, for the most part, came up clean with regard to most of these surveillance technologies, but given the flap over the MRAP, the Davis City Council could easily amend section three of their new policy to require council authorization for surveillance equipment.
—David M. Greenwald reporting