Join us as we tweet at Gov. Jerry Brown that he must sign A.B. 2298 to protect the privacy and civil liberties of hundreds of thousands of Californians who have been caught up in the state's flawed CalGang gang affiliation database.
CalGang is a joke.
California’s gang database contains data on more than 150,000 people that police believe are associated with gangs, often based on the flimsiest of evidence. Law enforcement officials would have you believe that it’s crucial to their jobs, that they use it ever so responsibly, and that it would never, ever result in unequal treatment of people of color.
But you shouldn’t take their word for it. And you don’t have to take ours either, or the dozens of other civil rights organizations calling for a CalGang overhaul. But you should absolutely listen to the California State Auditor’s investigation.
The state’s top CPA, Elaine Howle, cracked open the books and crunched the numbers as part of an audit:
This report concludes that CalGang’s current oversight structure does not ensure that law enforcement agencies (user agencies) collect and maintain criminal intelligence in a manner that preserves individuals’ privacy rights.
Brutal. But then there was more.
She wrote that CalGang receives “no state oversight” and operates “without transparency or meaningful opportunities for public input.”
She found that agencies couldn’t legitimize 23 percent of CalGang entries she reviewed. Thirteen out of 100 people had no substantiated reason for being in the database.
She found that law enforcement had ignored a five-year purging policy for more than 600 people, often extending the purge date to more than 100 years. They also frequently disregarded a law requiring police to notify the parents of minors before adding them to CalGang.
She found that there was “little evidence” that CalGang had met standards for protecting privacy and other constitutional rights.
As a result, user agencies are tracking some people in CalGang without adequate justification, potentially violating their privacy rights.
And then the other shoe dropped:
Further, by not reviewing information as required, CalGang’s governance and user agencies have diminished the system’s crime-fighting value.
To recap the audit: CalGang violates people’s rights, operates with no oversight, is chockfull of unsubstantiated information and data that should have been purged, and has diminished value in protecting public safety.
Assemblymember Shirley Weber has the start of a solution: A.B. 2298.
This bill would write into law all new transparency and accountability measures for the controversial CalGang database and at least 11 other gang databases managed by local law enforcement agencies in California.
- Law enforcement would be required to notify you if they intend to add you to the database.
- You would have the opportunity to challenge your inclusion in a gang database.
- Law enforcement agencies would have to produce transparency reports for anyone to look at with statistics on CalGang additions, removals, and demographics.
EFF has joined dozens of civil rights groups like the Youth Justice Coalition to support this bill. If you live in California, please join us by emailing Gov. Jerry Brown to encourage him to sign A.B. 2298 into law.
Updated Aug. 31, 2016: The bill passed out of the legislature on Aug. 29 and is now awaiting action by Gov. Jerry Brown. This post has been edited to reflect this development.
Here are some other things you should know about CalGang.
What is CalGang?
CalGang is a data collection system used by law enforcement agencies to house information on suspected gang members. At last count, CalGang contained data on more than 150,000 people. As of 2016, the CalGang database is accessible by more than 6,000 law enforcement officers across the state from the laptops in their patrol vehicles.
As the official A.B. 2298 legislative analysis explains:
The CalGang system database, which is housed by the [California Department of Justice, is accessed by law enforcement officers in 58 counties and includes 200 data fields containing personal, identifying information such as age, race, photographs, tattoos, criminal associates, addresses, vehicles, criminal histories, and activities.
Something as simple as living on a certain block can label you as a possible Crip or Hell’s Angel, subjecting you to increased surveillance, police harassment, and gang injunctions. Police use the information in the database to justify an arrest, and prosecutors use it to support their request for maximum penalties.
Many of the Californians included in the CalGang database don’t know they’re on it. What’s worse: If you’re an adult on the list, you have no right to know you’re on it or to challenge your inclusion. Law enforcement agencies have lobbied aggressively to block legislation that would make the CalGang data more accessible to the public.
How Does CalGang Work?
In use for almost 20 years, CalGang holds information collected by beat officers during traffic stops and community patrols. The officers fill out Field Identification Cards with details supporting their suspicions, which can include pictures of the person’s tattoos and clothing. They can collect this information from any person at any time, no arrest necessary. The cards are then uploaded to CalGang at the discretion of the officer. Detectives also add to the database while mapping out connections and associations to the suspects they investigate. Any officer can access the information remotely at any time. So if, during the course of writing a fix-it ticket, an officer runs the driver’s name through the database and sees an entry, that officer can potentially formulate a bias against the driver.
Ali Winston’s Reveal News article about the horrors of CalGang shows how Facebook photos with friends can lead to criminal charges.
Aaron Harvey, a 26-year-old club promoter in Las Vegas at the time, was arrested and taken back to his native city of San Diego. He was charged with nine counts of gang conspiracy to commit a felony due to the fact that a couple of his Facebook friends from the Lincoln Park neighborhood where he grew up were believed to be in a street gang. Police further suspected that those friends took part in nine shootings, all of which occurred after Harvey had moved to Nevada. Even though no suspects were ever charged in connection to the actual shootings, Harvey still spent eight months in jail before a judge dismissed the gang conspiracy charges against him as baseless. As a direct result of his unjust incarceration, he lost his job and his apartment in Las Vegas and had to move in with family in San Diego.
Asked about his experience of gang classification systems, Harvey said, “It’s like a virus that you have, that you don’t know you have… (Someone) infected me with this disease; now I have it, and there’s no telling how many other people I have infected.”
It’s Based on Subjective Observations
The criteria used for determining gang affiliation are laughably broad. Much of the information that is considered to be evidence of gang activity is open to personal interpretation: being seen with suspected gang members, wearing “gang dress”, making certain hand signs, or simply being called a gang member by, as the CalGang procedural manual states, an “untested informant”. The presence of two of these criteria is considered enough evidence for people to be included in the database for at least 5 years and subject to a possible gang injunction (a court order that restricts where you can go and with whom you can interact).
A.B. 2298’s legislative analysis explains the flaw in this system.
[A]s a practical matter, it may be difficult for a minor, or a young-adult, living in a gang-heavy community to avoid qualifying criteria when the list of behaviors includes items such as “is in a photograph with known gang members,” “name is on a gang document, hit list or gang-related graffiti” or “corresponds with known gang members or writes and/or receives correspondence.” In a media-heavy environment, replete with camera phones and social network comments, it may be challenging for a teenager aware of the exact parameters to avoid such criteria, let alone a teenager unaware he or she is being held to such standards.
As we saw with Aaron Harvey, meeting three of the criteria can get you a gang conspiracy charge.
It’s Racially Biased
Patrol officers, because they directly engage the public during their daily beat, make many of the entries. The problem is that communities of color tend to be heavily policed in the first place. In a state that is 45% black and brown, Hispanic and African-American individuals make up 85% of the CalGang database. In a country where people of color are already targeted and criminally prosecuted at disproportionately higher rates, having a database that intensifies racial bias and penalizes thousands of Californians based on the neighborhood and community in which they live, their friends and other personal connections, what they wear, and the way that they pose in pictures is unconstitutional.
That being said, false gang ties can be attributed to anyone (with all the negative ramifications that go along with them) regardless of race. The database also includes people with tenuous ties to Asian gangs, white nationalist groups, and motorcycle clubs.
Lack of Transparency
Even though S.B. 458 was passed in 2013 requiring that the state of California notify parents of juveniles who are listed on the database (because some registrants are as young as 9 years old), a 2014 proposition that would have extended the notification to adults was heavily resisted by law enforcement agencies. That bill ultimately failed. As it stands today, if an adult Californian wanted to know if they are listed in CalGang, they would have absolutely no recourse. There is no way to challenge incorrect assertions of gang affiliation. Most of the adults who are listed as potential gang members won’t find out until after an arrest.
In terms of governance, the State Auditor noted that because CalGang wasn’t created by a statute, there is no formal state oversight. Instead, it’s managed by two secretive committees, the CalGang Executive Board and the CalGang Node Advisory Committee. She writes:
Generally, CalGang’s current operations are outside of public view… we found that the CalGang users self‑administer the committee’s audits and that they do not meaningfully report the results to the board, the committee, or the public. Further, CalGang’s governance does not meet in public, and neither the board nor the committee invites public participation by posting meeting dates, agendas, or reports about CalGang.
The last report from the California Department of Justice explaining the data in CalGang was published way back in 2010.
Correction: The figure regarding the number of individuals in the CalGang database has been adjusted from 200,000 to 150,000 based on updated numbers from the auditor's report.