In summer 2014, an intern at the ACLU found a memo from a public meeting in which the San Jose Police Department asked to be reimbursed for a “UAV,” which he immediately recognized as a type of drone.
“It was tucked in the back of an agenda item,” says Nicole Ozer, director of technology and civil liberties policy for the ACLU of California. The City Council approved the purchase of the $8,000 drone as part of a million-dollar federal grant, but there had been no public debate over the merits of acquiring such a controversial piece of equipment.
Ozer asked community members if they knew about the drone purchase. “We thought maybe we just missed it but everyone else knew about it,” Ozer says. But no one they reached out to had any idea.
The incident confirmed a fear shared by civil liberties advocates: police departments around the country were buying surveillance equipment with FEMA homeland security grants with little oversight. Each year, over $1 billion of these grants are funneled to municipalities across the country, bypassing local budget processes and leaving community members in the dark about the acquisition of advanced surveillance arsenals. Cities in California have purchased or attempted to acquire drones, cellphone tower simulators, and other tools previously reserved for the federal government.
“We found, across the board, that even basic public conversation and debate was absent,” Ozer says.
The drone discovery was one of the events that led California’s Santa Clara County to become, in June 2016, the first in the country to pass an ordinance requiring transparency for police surveillance technology based on a recent ACLU model. The law requires public input, an impact report, and a use policy with details about data sharing before equipment is purchased. (Seattle passed a similar law in 2013, also with ACLU involvement, but its scope was limited to video surveillance.)
Last fall, the ACLU announced a nationwide strategy in partnership with over a dozen other civil liberties groups to promote similar bills in cities across the country. Called Community Control Over Police Surveillance, or CCOPS, the ACLU says there are bills with sponsors in 19 cities nationwide and one public transit system, the Bay Area’s BART. Chad Marlow, who is overseeing the nationwide strategy for CCOPS at the ACLU, says that organizing is underway in an additional 46 cities and one state, though he doesn’t expect them all to find sponsors.
In California, bills are up for debate in Oakland, Berkeley, San Francisco, and Palo Alto. Similar initiatives are underway in New York City, which will hold a hearing on June 14th, as well as smaller cities nationwide such as Somerville, Massachusetts; Madison, Wisconsin; and Richmond, Virginia.
Nicole Ozer says that over and over again she has seen communities fight back against the creep of surveillance technology. She believes ordinances like the one the ACLU is pushing are a first step to accomplish this.
“When communities know what’s happening, they are in a much better position to fight against it,” Ozer says. “You can’t fight what you don’t know.”
In Santa Clara County, where the law has been enforced since June 2016, community members say it’s working as intended, though the quality of use policies vary. After the law was introduced, 16 use policies were submitted at once for new and existing equipment. Some policies passed quickly with little scrutiny, while others were rejected; at least one policy passed despite public criticism.
When the Sheriff’s Department sought to fit officers with body-worn cameras, the ordinance required them to publicize a surveillance-impact statement and use policy before a scheduled public hearing. A draft use policy was deemed too broad by critics at the Electronic Frontier Foundation, ACLU, and CAIR, who voiced their objections in a letter to the Board of Supervisors. They took issue with the policy’s year-long data retention period, the ability of officers to view footage before giving testimony in certain situations, and lack of protections against biometric analysis like facial recognition.
Following an update on the use policy, the body-worn cameras were approved by the board of supervisors on January 24th, 2017. The new requirements prohibit the use of data for biometrics, requiring future approval from the county.
But when questions arose over a purchase enabling aerial infrared surveillance, the input of civil liberties advocates through the CCOPS process was brushed aside. In 2016, the Santa Clara Sheriff’s Department proposed a $620,000 purchase of an integrated helicopter mapping system that included a Forward Looking Infrared Imaging System, or FLIR, a type of thermal camera. The technology has been controversial since the early ‘90s, when the Supreme Court ruled that thermal imaging constituted a search requiring a warrant.
The use policy of the Sheriff’s Department and an early impact report approved a broad range of uses for the mapping system and thermal camera, and dismissed concerns about privacy as misinformed. Approved uses in the draft policy include “tracking suspects,” “evidence collection,” and, most vaguely, “other law enforcement or first responder uses not prohibited by law.”
That triggered a critical letter from the Electronic Frontier Foundation that called into question the necessity of the mapping system, arguing that aerial recordings of civilians created significant civil liberties problems. The letter was not enough to sway Santa Clara’s Board of Supervisors, and the Sheriff’s Department’s use policy stayed as is.
Adam Schwartz, a lead counsel at the Electronic Frontier Foundation who authored the letter to the board, says that both the body cam and the FLIR case are evidence that CCOPS is effective.
“We would never have known this was happening if it wasn’t for the ordinance,” Schwartz says. “In both instances, we think the system worked the way it’s supposed to work. We don’t just wake up as civilians and all of a sudden there’s a new mapping system on a helicopter, or a new body-worn camera on the officers. Rather there’s a notice to the public beforehand, and an opportunity for public discussion.”
Other community members reiterated that merely being able to ask questions about surveillance technology and have them answered is reassuring.
Sameena Usman is a coordinator at the Council of American-Islamic Relations’ Bay Area office, one of the groups that advocated for the ordinance in Santa Clara. Usman attended the hearing when the FLIR was discussed. To Usman, the value of the ordinance is that it mandates transparency.
“That transparency has built trust,” Usman says.
The ACLU’s Marlow says that support for CCOPS-modeled legislation has largely been bipartisan. “We face neither resistance from the left or right,” Marlow says. “The only place we face resistance is from the police.”
In Pensacola, Florida, a version of the ordinance is being sponsored by City Council member Jewel Cannada-Wynn, and it is backed the state’s NAACP chapter, as well as libertarian and Republican groups.
“How often do people from both parties agree on anything?” says Sara Latshaw, regional organizer for the ACLU in Northwest Florida, who is overseeing CCOPS in Florida.
Bill Fetke is a member of the Republican Liberty Caucus, a conservative grassroots group, and a supporter of the ordinance in Pensacola. He says he has confidence in local law enforcement, but opposes what he views as overreach by the state.
“There’s a camera watching you every five feet,” Fetke says. “I don’t do anything wrong, but I don’t want a camera staring at me every five seconds.”
Reaction from some conservatives he knows has been mixed, Fetke says.
“Most people kind of think I’m wearing a tinfoil hat,” he says. “They don’t think it applies to them. Even the libertarians who are in the middle aisle.” But he believes conservatives who don’t support the ordinance are thinking short-term.
“We need to force our government to follow rules,” Fetke says. “If we don’t stop them here, they’re going to trample all over our Fourth, Ninth, 10th Amendments.”
The spread in the use of body cameras by police departments across the country, often implemented with poor use policies, is another reason the surveillance bill is finding support. Promoted as accountability tools, departments also view body cameras as tools for gathering incriminating evidence, and most use policies make it difficult for family members of a victim in an officer-involved shooting to acquire footage.
In Hattiesburg, Mississippi, where a CCOPS ordinance is being sponsored, a police spokesman told the press that officers would use body cameras to gather evidence. “A lot of times we may not catch everything, but we can go back and look at it later,” the spokesman told the Hattiesburg American. A use policy for Hattiesburg’s body-worn cameras has never been made public. CCOPS legislation would force the department to release that policy.
Zaki Manian, of Restore The Fourth, a Bay Area-based civil liberties group, says organizations like his have a complicated relationship with body cameras. Manian believes they can be a tool for accountability, but mounting evidence suggests they could be used as just another surveillance technology.
“The only way you can ethically sort of balance these concerns is with consent of people in the community,” Manian says.
But even supporters of CCOPS admit the legislation has its limits. One fear is that the law would merely legitimize surveillance technologies that now exist in legal gray zones.
“When you pass a law, you create legality where there wasn’t,” says Malkia Cyril of the Center for Media Justice, a Bay Area nonprofit. “We create the legal framework where they can be legally abused.”
Cyril is opposed to police body cameras, and is skeptical that use policies, such as those arbitrated through CCOPS legislation, will be enough to rein in the abuse of surveillance in over-policed communities.
“Whether or not you have a use policy, does not mean there’s a way to enforce a use policy,” Cyril says.
“I can’t reiterate enough how dangerous it would be to me to if we rested on the laurels of a municipal policy. It’s insufficient. It’s important and insufficient,” Cyril says.
The limit of the ordinance is particularly visible in NYC, where the state’s constitution does not allow the City Council to veto NYPD purchases, and where pressure from a powerful police union has caused Mayor de Blasio, who campaigned on police reform, to bow to pressure more than once.
NYC’s CCOPS ordinance, dubbed the POST Act, is sponsored by 15 council members and is set for a City Council hearing on June 14th.
Like the ordinance in Santa Clara and bills elsewhere, it requires a use policy and public comment for the purchase of any surveillance equipment. But while the police commissioner would need to submit a use policy informed by public comments to the City Council, no city entity would need to approve a purchase. The only oversight would come from the NYPD Inspector General, an independent agency that audits the NYPD, which would be tasked with making sure the NYPD’s surveillance deployments are consistent with its own use policies. The process is similar to the public consultation that the NYPD undertook prior to rolling out a pilot body camera program in April. But that use policy came under criticism for not fully taking citizens’ opinions into account.
Nevertheless, proponents argue the legislation will promote transparency and force police departments to think critically about surveillance.
“It’s really about getting them to change the way they think,” says Brian Hofer of Oakland Privacy. He says in the months since the Santa Clara ordinance was put in place, he’s seen the use policies submitted by the police improve. It’s a sign, he suggests, that the law is working.
But the uncertainty as to whether the NYPD, or any police department across the country, will adhere to strengthened guidelines for their surveillance gear may be why advocates like Center for Media Justice’s Malkia Cyril are skeptical about an over-reliance on policy, while also acknowledging it as a necessary first step.
“Policy is one thing,” Cyril says. “Power is another.”