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Hella Privacy Happening in the Bay Area (And 34 Years Late Orwell May Have Something to Smile About)

The Berkeley City Council made history Tuesday, March 27th, 2018 by becoming the first municipality in California, and likely the United States, to enact into law its 'Surveillance Technology Use and Community Safety' Ordinance.  This ordinance regulates the procurement and use of surveillance technology (both hardware and software) by any City agency, and is based on the American Civil Liberties Union's Model Community Control Over Police Surveillance Ordinance, first published in 2014.

The new law passed its first reading on March 13th, 2018, with a unanimous vote, and again passed unanimously on its second and final vote.

The City of Davis, CA followed one week later, passing the second reading of its own, similar, ordinance, on April 3rd, 2018.

The County of Santa Clara passed a similar ordinance in 2016. Oakland is poised to consider its version of the ordinance beginning on April 10th, with a hearing before the Oakland City Council's Public Safety Committee, and other jurisdictions are beginning the process.

From the preamble of the Berkeley legislation:

… the City seeks to establish a thoughtful process regarding the procurement and use of Surveillance Technology that carefully balances the City's interest in protecting public safety with its interest in protecting the privacy and civil rights of its community members…

Decisions relating to Surveillance Technology should occur with strong consideration of the impact such technologies may have on civil rights and civil liberties…

Data reporting measures will enable the City Council and public to confirm that mandated civil rights and civil liberties safeguards have been strictly observed.

From the preamble of the Davis legislation:

… the City Council finds that proper transparency, oversight and accountability for the acquisition and use of surveillance technology is fundamental to protecting the rights and civil liberties, including privacy and free expression, of all people.

…  the City Council finds it necessary that safeguards be in place to protect civil liberties and civil rights before any surveillance technology is deployed.

…the City Council finds that if surveillance technology is approved, there must be continued oversight and annual evaluation to ensure that safeguards are being followed and that the surveillance technology's benefits outweigh its costs.

The body of the ordinances

  • forbid the acquisition of surveillance technology without a public process,
  • insist upon analysis of civil liberties concerns and cost/benefit,  
  • demand a use policy specifying under what conditions the technology may – and may not – be used.
  • mandate City Council consent is before acquisition.

Surveillance technology is broadly defined as:

…an electronic device, system utilizing an electronic device, or similar technological tool used, designed, or primarily intended to collect audio, electronic, visual, location, thermal, olfactory, biometric, or similar information specifically associated with, or capable of being associated with, any individual or group…

Surveillance Technology include, but are not limited to: cell site simulators (Stingrays); automatic license plate readers; body worn cameras; gunshot detectors (ShotSpotter); facial recognition software; thermal imaging systems…  social media analytics software; gait analysis software; and video cameras that record audio or video and can remotely transmit or can be
remotely accessed.

The new Berkeley ordinance was pushed by advocates from  Oakland Privacy, the ACLU of Northern California, and the Electronic Frontier Foundation. It took a year and half of process and revisions to get to a final vote.

The idea of the regulation of surveillance technology is likely decades or more old, but got a strong impetus from the Snowden relevations in 2013. Locally, the attempt by Oakland to create a Domain Awareness Center spurred activists to first stop it in 2014 and then begin a years-long campaign for better oversight and more transparency.

We've come a long way since 1984. And not in a good way. This is one small, but very important, step in the process of limiting the reach of an otherwise all-knowing state. It needs to spread across the country.

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