On Tuesday, May 15th, the Oakland City Council passed into law what has deservedly been called the “strongest surveillance oversight law in the country.”
Some of its key requirements:
- Public hearings on every new gadget and computer program that can be used for surveillance or monitoring.
- Review by Oakland's Privacy Advisory Commission and then approval or denial by vote of the City Council of such technology.
- Approval or denial by vote of the Council on any proposed information sharing with Federal agencies (e.g. ICE).
- Evaluation of civil rights concerns, and a cost/benefit analysis, BEFORE approval.
- Putting in place a privacy and use policy before any equipment or software can be deployed, specifying what it may – and may not – be used for, and how long any data it may gather may be kept.
- A public report every year on how and when the equipment or software has been used.
- Penalties for violations of the ordinance or a use policy.
Such a law was first conceived of by the ACLU circa 2013 in the wake of the Snowden relevations, and dubbed “Community Control Over Police Surveillance (CCOPS).” The need for such laws became clear in Oakland as the fight to prevent a proposed, Orwellianly named Domain Awareness Center, ramped up and was ultimately successful in 2014 — catalyzed by the activist group Oakland Privacy.
The first step thereafter on the path to Oakland’s Surveillance Equipment Regulation Ordinance (SERO) was the creation of a Privacy Advisory Commission by the Oakland City Council. It was charged with, among other things, drafting the ordinance and bringing it the Council. After much painstaking work, multiple drafts, consultations with the police and City unions, and the inevitable bureaucratic delays, the ordinance became ready for Council consideration in 2018.
And, after two readings, the first on May 1st and the 2nd on May 15th, it passed unanimously into law.
The fact that the ordinance passed is itself cause for celebration – a victory against the surveillance state. The reasons given for its necessity in the ordinance's preamble are worthy of note as well:
- it is essential to have an informed public debate as early as possible about decisions related to… acquisition and use of surveillance technology
- … throughout history, surveillance efforts have been used to intimidate and oppress certain communities and groups more than others, including those that are defined by a common race, ethnicity, religion, national origin, income level, sexual orientation or political perspective
- no decisions relating to the… use of surveillance technology should occur without strong consideration being given to the impact such technologies may have on civil rights and civil liberties
- …legally enforceable safeguards, including robust transparency, oversight, and accountability measures, must be in place to protect civil rights and civil liberties before any City surveillance technology is deployed
You might ask (if you are too young to remember the vast abuses of our civil rights the FBI perpetuated even before the age of sophisticated technological surveillance, search and data integration, or you were perhaps in a cave when Snowden revealed what the NSA was – and still probably is – up to):
“Why is this legislation necessary? Why isn't the Fourth Amendment enough?”
As answered by a FAQ put out by the Oakland Privacy group:
The short answer is that the law has not kept up with technology.
The longer answer is that our constitution, written in the 1780's, could not have conceived of the technological capacities we now have for observation and communication. While some legal opinions have extended fourth amendment protections to include newer technologies, others have gone in the opposite direction (e.g., a recent decision, USA v Matish, said that you have no reasonable expectation of privacy with respect to your home computer if it is connected to the Internet!).
We have the very real possibility of soon living in a society far beyond what even George Orwell imagined – where we will be tracked whenever we leave our house through facial recognition integrated with surveillance cameras; where everything we do online will be cataloged, stored and run through algorithms for “thought crime” analysis, and where our conversations may be overheard and analyzed – even in our own homes if we choose to use voice-enabled gadgets. These things are all well within our technological capability today, and who knows what will be possible in five or ten years?
Not only is our constitution unable to deal effectively with it all, but laws cannot keep pace either. Technology is developed and deployed long before legislators can regulate it – if they even know about it, which they often don't.
This legislation reverses that course – it stipulates that such technology will not be deployed without analysis, public awareness, and, hopefully, a democratic decision about what level of surveillance is acceptable in an open society.
You also might ask, “What sort of stuff are we talking about?”
Surveillance cameras. Drones. Infrared Imaging Cameras (FLIRs). Cell tower simulators (STINGRAYS) that can tap your cell phone. Social media analysis software. Website URL analysis software. Automatic License Plate Readers (ALPRs). Facial recognition and other appearance-analyzing software used in conjunction with surveillance cameras. Voice and other sound detection systems (SHOTSPOTTER). Satellite imagery analysis. Spyware on your computer. GPS location monitoring. Data integration from multiple databases and subsequent profiling… The list goes on. The possibilities into the future are essentially endless.
And how was this getting into the hands of public servants without public process? As Slate writer Robyn Greene explains:
After Sept. 11, thanks in part to massive federal grants with few strings attached, local law enforcement agencies all over the United States began steadily acquiring and deploying powerful new policing tech. These surveillance technologies [were] often acquired and deployed unbeknownst to residents or city councils and usually without court approval or oversight… This trend of unrestrained acquisition and use of surveillance tools has been dubbed by some critics as “policymaking by procurement,” with important decisions being made about police power based simply on the fact that the feds were willing to cut a check for the tech, rather than being based on careful consideration by local elected officials.
No more. In Oakland. In Berkeley. In Davis. In first-in-the-nation Santa Clara County. And hopefully soon other localities around the country. In fact, Oakland Privacy and the ACLU of Northern California are leading an effort to get California bill SB 1186 enacted, which would extend surveillance regulation similar to the Oakland legislation across the entire State of California.
Now we can begin to watch them as they are watching you. And me. And your friends. And the Muslim couple down the street. And the Black Lives Matter activist over there.
And that's a good thing.