City of Berkeley Passes Ordinance Taking on Surveillance State

By Michael Maharrey

The city of Berkeley, Calif., has passed a local ordinance that sets the stage to limit the acquisition and use of spy gear by law enforcement and other city agencies.

The Surveillance Technology Use and Community Safety Ordinance ensures there will be public notice and debate before the city acquires or uses surveillance technology. Specifically, the new law requires all city entities to seek city council approval before accepting grant funds for, or the purchase or use of, any new surveillance technology or equipment. The approval process for acquiring and using such technology includes completing a Surveillance Technology Impact Report and the city council making a determination that the benefits of the technology outweigh the costs. Once approved, the city must develop a use policy for the technology, including robust safeguards for civil liberties and security of information collected.

The ordinance requires that current surveillance technology undergoes a similar public review and approval process. It also requires annual oversight of all surveillance uses be conducted by the Privacy Advisory Commission and reported to the city council.

The TAC joined with a broad coalition including the ACLU of Northern California, EFF, the Center for Media Justice and other local activist groups concerned with law enforcement’s secretive and unaccountable use of technologies that can facilitate discriminatory policing and undermine public safety goals.

The ordinance is straightforward: it requires essential transparency, accountability, and oversight for all surveillance technology proposals, and it ensures the public has the opportunity to learn about the civil rights and civil liberties impact of surveillance technologies before local officials acquire them.

The Berkeley City Council passed the ordinance and Mayor Jesse Arreguin signed it on March 29. The new law is slated to become effective April 29.

The East Bay Express said passage of the ordinance was a crucial step forward.

The ordinance will require a mindfulness that is lacking in today’s law enforcement and surveillance circles.

A similar ordinance passed in Santa Clara County in 2016. The Berkeley ordinance was based on model legislation developed by the ACLU with input from the Tenth Amendment Center. Berkeley is one of multiple cities that introduced measures as part of the #TakeCTRL initiative.

Impact

Local police have access to a mind-boggling array of surveillance equipment. As it now stands, many law enforcement agencies can obtain this high-tech, extremely intrusive technology without any approval or oversight. Police often operate highly intrusive surveillance technology in complete secrecy.

The federal government facilitates local surveillance through grants and other funding sources for this spy-gear, meaning local governments can keep their purchase “off the books.” Members of the community, and even elected officials, often don’t know their police departments possess technology capable of sweeping up electronic data, phone calls and location information.

In some cases, the feds even require law enforcement agencies to sign non-disclosure agreements, wrapping surveillance programs in an even darker shroud of secrecy. We know for a fact the FBI required the Baltimore Police Department to sign such an agreement when it obtained stingray technology. This policy of nondisclosure even extends to the courtroom, with the feds actually instructing prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported, a Baltimore detective refused to answer questions about the department’s use of stingray devices on the stand during a trial, citing a federal nondisclosure agreement.

As privacysos.org put it,

The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.

Ordinances like the one approved in Davis create a framework of oversight and transparency for surveillance programs. They also set the stage to limit surveillance by giving residents input into the process and allowing them to oppose and stop the purchase of spy-gear.

Impact on Federal Surveillance

Passage of local ordinances not only protects the privacy of people in that area. They also undermine the federal surveillance state. The federal government funds much of the surveillance technology acquired by state and local law enforcement. In return, federal agencies tap into the data swept up by these agencies through information sharing agreements and fusion centers. Information gathered by your local police department often ends up permanently stored in federal databases. These create the backbone of the federal surveillance state.

The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, local data collection using ALPRs, stingrays and other technologies create the potential for the federal government to track the movement of millions of Americans, and obtain and store information on millions of Americans, including phone calls, emails, Web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

By facilitating local surveillance, the federal government undoubtedly gains access to a massive data pool on Americans without having to expend the resources to collect the information itself. By requiring approval and placing the acquisition of spy gear in the public spotlight, local governments can take the first step toward limiting the surveillance state at both the local and national level.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. This represents a major blow to the surveillance state and a win for privacy.

Passage of an ordinance in one locality may not seem significant. But when multiplied over hundreds of cities and counties across the United States, this strategy could seriously undermine federal surveillance programs. If local police can’t collect and share the data, it cannot end up in federal databases.