Q. Why is this legislation necessary? Why isn’t the Fourth Amendment enough?

A. 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 nothing will be deployed without analysis, public awareness, and, hopefully, a democratic decision about what level of surveillance is acceptable in an open society.

Q. What sort of stuff are we talking about?

A. 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.

Q. My town doesn’t have any surveillance equipment. Why do we need this?

A. In fact, your town probably already does have such equipment. Such things as red light cameras, police body cameras, surveillance cameras, license plate readers and social media analysis software are, if not ubiquitous, in the hands of many police departments and municipalities, often without the populace even being aware of it.

Even if your local government does not currently possess anything currently, the cost of much of it is going down rapidly, and its sophistication is increasing rapidly. It’s only a matter of time before every police department and municipality will have the opportunity to obtain “crime fighting tools” at little or no cost, and it is very difficult to resist the siren call of inexpensive or free technology designed “to keep us safe.”

Q. Why is the legislation long and complicated?

A. The Affordable Care Act is 2000+ pages. THAT is long and complicated. This ordinance is about ten pages, and it is only that long because it covers four different aspects of surveillance, specifying for each piece of equipment or software, in detail:

  • What has to happen BEFORE such technology is acquired, such as a public hearing, and a cost/benefit and civil liberties infringement analysis.
  • HOW and with what RESTRICTIONS the tech may be used – a privacy and use policy.
  • How often and to what extent reporting on use and effectiveness must be done.
  • An enforcement mechanism to make sure the law is followed.

None of these individually is particularly complicated, needing just a page or so to lay out in legalese what can be said in one English paragraph. Add an intro – still less than 10 pages.

Q. What’s the point of public hearings? No one goes to those things anyway!

A. “Eternal vigilance is the price of liberty.” It’s true that we should be able to trust our representatives to care enough to protect our civil liberties, but history has shown the opposite.

As an example, Oakland’s Domain Awareness Center, a massive system to collect and integrate surveillance data all over Oakland, was ready to be approved unanimously without debate by the Oakland City Council until someone noticed it and organized fellow citizens to speak at Council.

In lieu of stronger constitutional protections (which we should have!), we think allowing public debate and insisting on public scrutiny is the best way we have of making sure such proposals are vetted. BART was about to install license plate readers in its parking lot until a privacy advocate noticed the item on the agenda. Now they are about to pass a version of the Surveillance Equipment Regulation Legislation.

Perhaps the public and the BART Board will ultimately decide it is okay to put such readers in BART parking lots – but it will have been done openly, considering the tradeoffs between privacy, civil liberties and safety.

To directly answer the question: no, we can’t guarantee that concerned citizens will show up, or that our legislators will make the right decisions even in the light of public awareness, but we think that insisting that these issues be debated in public is an important component in the fight against a super-Orwellian future.

Q. What’s a “privacy and use policy”?

Simple. For a piece of equipment or software, it specifies

  • What you CAN use the system for…
  • and what you CANNOT use the system for
  • Under what conditions the system is allowed to be deployed (e.g., “get a warrant”)
  • How long the data your collect can be stored for later retrieval…
  • And what protections are in place to prevent unauthorized access.

It’s the analog of a safety policy for a piece of construction equipment, or rules for road repair (e.g., “put up safety cones 10 yards from your work zone”).

Q. It seems like the ordinance requires a lot of paperwork?

A. It doesn’t, really. Really! The day to day operations log is usually automated (in the sense that the equipment itself, or its attendant software, keeps a record of its use). The yearly reporting consists of filling in a simple spreadsheet of use and doing a brief write-up.

Yes indeed, it does take a fair amount of paperwork (and investigation, analysis, evaluation and approval) to obtain the equipment in the first place – AS IT SHOULD!

The legislation specifies periodic reviews to determine if the benefits of the equipment or software continue to justify its cost. But that’s the essence of good government. We know very well that projects, departments and equipment stick around long after they have any net benefit if we aren’t diligent. Every significant purchase and procedure should have such reviews, not just surveillance equipment!

Q. How does this get enforced? Isn’t this just going to become another toothless law that no one follows?

A. If there’s no mechanism in the ordinance for enforcement, then, indeed, it will be a toothless law. Or if no one is interested in enforcing it, then, indeed, it will be a toothless law.

Violating people’s right to privacy is no less a problem than violating people’s right to free speech, press and assembly. There is a federal law that allows individuals to bring suit against people operating under “color of authority” who violate people’s rights, and to bring suit against government entities themselves to force them to stop such behaviors. The same sort of protection, at the very least, is reasonable here, and that’s what the legislation proposes.

That, along with the periodic reporting established in the ordinance – which will give civil liberties advocates and concerned citizens the ability to draw attention to problems as they arise – should be a good balance.

Q. What do the police think about this?

A. No one likes being told what they can’t do, we understand that.

While we can’t speak for all (or any) police departments, we know that the Oakland Police have worked with privacy advocates to create an ordinance for Oakland very similar to the one you are considering.

Q. Who are you?

A. We’re Oakland Privacy.

Website: oaklandprivacy.org
Email: contact@oaklandprivacy.org
Twitter: @oaklandprivacy





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