Overview:
Surveillance of oppressed groups and so-called undesirables has been a tenet of America's heritage. Slave patrols and infiltration made sure the smallest hints of rebellion were brutally repressed. As early as the 1860's, police were spying on labor organizers. J. Edgar Hoover's FBI was compiling dossiers on anyone perceived to be a threat, including the leaders of the Civil Rights Movement.
The '80s saw the Drug War used to extend the monitoring of people of color - with massive phone data collection, public cameras, and individual randomized targeting, best known as 'Stop & Frisk.' After 9/11, many such practices extended to Muslim faith communities.
Today, new technologies are allowing police to deploy surveillance on an unprecedented scale. Unsurprisingly, the weight of this is being brought to bear most heavily on minorities and the impoverished.
The State of Oakland Surveillance:
In Oakland, where people go is now tracked by Automatic License Plate Readers. Their use by the Oakland Police is concentrated in East Oakland, a largely minority community. Black Lives Matter activists and other protesters are monitored on social media, befriended by false accounts set up by monitoring agencies, and then targeted for prosecution in unprecedented ways.
These are just two of the new capabilities Oakland's police have given themselves - with no City Council oversight or informed discussion by Oakland's residents. There's more.
OPD uses something called 'Stingray,' which intercepts and analyzes the cell phone communications of everyone in a wide area, violating fundamental rights against unreasonable search. Cameras which take heat-signature pictures are mounted on police helicopters. The Supreme Court has said the use of such cameras to conduct a search requires a warrant, but no one knows if OPD is in compliance, or what these devices are recording, because there is no verification.
Technology now exists to identify someone as soon as they step out onto the street through the use of cameras that match faces to databases. Devices which listen for gunshots already populate East and West Oakland, and it is not hard to imagine them being tuned to record and analyze conversations as well. All this technology could also be deployed on drones, silently hovering above the City.
Last year, the City of Oakland proposed to set up a surveillance hub, integrating street, school and public housing cameras, listening devices, facial recognition software, and social media monitoring and even purchasing and credit records. You may have heard it referred to by its Orwellian title 'The Domain Awareness Center.'
A new organization, the Oakland Privacy Working Group (OPWG), came together to oppose this. It catalyzed a coalition of immigrants, Muslims, African-Americans, and civil rights and labor activists, eventually causing the City Council to scale back its plans for the DAC, restrict its use, and insure that any monitoring would be covered by a privacy policy. The Council tasked citizens with creating that policy..
A New Path?
Here in Oakland, we have no citywide privacy policy; no privacy or data-retention policies for use of surveillance equipment; and no policy concerning the use of OPD’s cellphone tower-mimicking Stingray devices. And yet neither the purchase of Stingrays nor their use has ever been knowingly approved by the council.
As it debated, the citizens’ privacy committee came to realize that the process of acquiring surveillance equipment must change. These devices will become more and more sophisticated, but no mechanism exists for public input, council oversight, independent audits, or analysis of their effectiveness. Recommendations for city-wide policies to address this were made by the committee and sent to the Council.
On May 12, the Oakland City Council’s Public Safety Committee is poised to vote on recommendations created by the Privacy Committee. If passed by the full council, these would significantly protect the right to privacy for residents in this age of Big Data and Mass Surveillance.
Councilmembers will consider a privacy and data retention policy for the scaled back Port Domain Awareness Center (DAC). The council is also being asked to establish a new, permanent committee to advise the council on broad privacy and data-related matters; it in turn will create a citywide privacy policy. A proposal to adopt a first-of-its-kind surveillance equipment ordinance has also been made. If adopted, these recommendations will ensure that there is robust public debate on privacy issues before council approval of future surveillance projects, and that the effectiveness of surveillance tools be analyzed, reported publicly and undergo independent audits.
Don't Trust. Verify.
Taken as a whole, the implementation of the committee’s recommendations would make Oakland a national leader in protecting privacy rights. The ACLU has endorsed the surveillance ordinance, which is taken directly from model legislation it created. The editorial board of the Los Angeles Times endorsed the ACLU’s model, stating: “The ACLU’s approach to vetting new technologies is so pragmatic that cities, counties and law enforcement agencies throughout California would be foolish not to embrace it.”
Some states and municipalities are pursuing a similar path. Seattle has created a permanent privacy committee and adopted a surveillance equipment ordinance. Menlo Park in Silicon Valley recently adopted an ordinance that regulates the use of automated license plate readers and requires quarterly performance reports. Some states are attempting to restrict warrantless searches and the amount of time automated license plate reader data may be retained. San Francisco Supervisor John Avalos and Santa Clara Supervisor Joe Simitian are working to introduce in their jurisdictions the same type of surveillance equipment ordinance discussed here.
With the adoption of these recommendations as written, the Oakland City Council would show it is earnest about protecting its citizens’ privacy rights. By supporting their full implementation, city staff and law enforcement could demonstrate that they intend to earn the community’s trust by operating within the bounds of the Constitution, City policy and civilian oversight.
As the Los Angeles Times editorialized, “trust us is not enough.”
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A version of this piece, in two parts, was originally published in The Oakland Post, here and here.
I co-authored this piece with Brian Hofer (@b_haddy), chair of the Oakland City Council's Citizens' Privacy Committee