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Why California Urgently Needs Surveillance Transparency

DEEPLINKS BLOG
June 6, 2017

A version of this commentary appeared in the San Diego Union-Tribune on May 27, 2017. 

In the summer of 2015, a local resident joined a nationwide project to uncover how police use face recognition devices. He filed a public records request with the city of Carlsbad, which quickly responded that no documents existed because the city didn’t use that technology.

This was demonstrably false: the Carlsbad Police Department had been part of a regional face recognition pilot program for years. Eventually, the city admitted that 14 officers were walking around with special smartphones that capture faces and match them against the county’s mug shot database. 

But Carlsbad could not produce policies, protocols, or guidelines for how and when officers may operate the devices. Nor did the city have a count of how many time the devices were used. The only record available was a technical manual for the face recognition app. 

Surveillance technology is rapidly advancing, whether it’s drones mounted with cameras, automated license plate readers (ALPRs) that track our travel patterns, fake cell towers that surreptitiously connect to our smartphones, algorithms that scrape our social media profiles, or devices that digitize our faces.  Many of these technologies aren’t limited to gathering intelligence on suspects, and instead collect information on everyone. 

The Carlsbad incident raises questions about public trust and high-tech policing. Who should decide which surveillance technologies are appropriate for our communities? Should police have to disclose how technologies that invade our privacy are used and how often they’re abused? 

Individual privacy and public safety are not mutually exclusive; it just takes a robust debate to land on the right balance between the two. This conversation won’t happen unless the rules change so police must obtain approval from the public and our elected officials before deploying invasive spy tech.

A bill now under consideration by the California Senate—S.B. 21—would ensure that police do not acquire surveillance technology without a public process.

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Before a law enforcement agency could acquire a new spy technology, it would submit a usage policy for public review during an open meeting. Elected representatives (such as a city council) would have the ultimate authority to approve or reject the technology. In exigent circumstances, police could temporarily bypass the process, but they would need to stop using such temporary surveillance technology and submit proper disclosures after the emergency has passed. 

Police and sheriff departments would publish biennial transparency reports. These disclosures would include: the kinds of data the technologies collect; how may times each technology was deployed; how often the technology helped catch a suspect or close a case; and the number of times the systems were misused. 

In 1972, Californians voted to include privacy as an inalienable right in the state’s Constitution. “The proliferation of government snooping and data collecting is threatening to destroy our traditional freedoms,” the authors of the amendment wrote. They warned technology would soon allow police to create “cradle-to-grave” profiles of every American, which then could be used humiliate us.

One need only look to nearby Calexico. In 2014, police in this border town spent nearly $100,000 from a slush fund of seized assets on sophisticated spy gear. They then allegedly used these systems to run illegal surveillance on city councilmembers with the intent to extort. A U.S. Department of Justice investigation confirmed this corruption, but also found a troubling pattern in which the city approved a network of surveillance cameras, body cameras, and ALPR technology “before implementing the essential fundamentals of policing.”

To head off these kinds of threats to privacy, the Santa Clara County Board of Supervisors has already passed a local ordinance promoting transparency about surveillance technology. The cities of Oakland and Palo Alto, and the Bay Area Rapid Transit board are also considering similar measures in response to growing community concern about unchecked surveillance. 

S.B. 21, legislation by Sen. Jerry Hill (D-San Mateo), would implement statewide standards—an important step for San Diego County, where police technology often flows freely between agencies. The bill also enhances fiscal responsibility by providing policymakers with data to evaluate whether a costly technology is actually as effective as vendors claim. 

As the U.S. government ramps up a new “War on Drugs” and aggressive immigration enforcement, we can anticipate even more military-grade surveillance technology to flow down to local law enforcement agencies through grant programs, equipment transfers, and federal partnerships. California lawmakers must pass S.B. 21 to put adequate controls in place to so these technologies are operated responsibly, transparently, and with respect for our constitutional rights. 

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