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California Bill to Help End Unchecked Police Surveillance, Establish Local Control Likely Dead in Assembly Committee

SACRAMENTO, Calif. (Aug 20, 2018) –  A California Assembly committee has effectively killed a bill that would have increased oversight and transparency of law enforcement surveillance technology. Passage of the bill would have taken the first step toward limiting the unchecked use of surveillance technologies that violate basic privacy rights and feed into a broader national surveillance state.

Sen. Jerry Hill (D-San Mateo) introduced Senate Bill 1186 (SB1186) back in February. The legislation would require local law enforcement agencies to draft a Surveillance Use Policy for each type of surveillance technology it operates and the information collected. It would then have to submit the policy to its governing body for approval at a regularly scheduled hearing, open to the public. If the plan is not adopted, the law enforcement agency would be required to cease using all surveillance technology within 30 days. The proposed law would require law enforcement agencies to amend their use policies for any new surveillance technology they acquire in the future, subject to the same approval requirements. Without approval, the agency could not use the new technology. Sheriff’s offices and district attornies would also have to get local government approval before obtaining surveillance technology.

The proposed law would establish separate procedures for the Department of the California Highway Patrol and the Department of Justice to establish their own Surveillance Use Policies.

On Aug. 16, the Assembly Appropriations Committee held SB1186 under submission, meaning the bill is effectively dead. While it could technically be scheduled for another hearing, this is unlikely. Holding a bill in appropriations is often used as a procedural tool to kill legislation.

The Senate passed SB1186 by a 21-15 vote and two Assembly committees overwhelmingly approved the measure before Appropriations held it. The committee buried a similar measure last year after it passed the Senate by an identical 21-15 margin.

A strong coalition of organizations including the Tenth Amendment Center worked for passage of SB1186 and more broadly to limit the impact of government surveillance. A spokesperson for the ACLU of Northern California called the committee move “unfortunate,” but not a complete loss.

“Thanks to the hard work of everyone here, we helped ensure the bill was not weakened and that local reforms here in California have the space they need to continue forward.”

Efforts to ensure surveillance programs are operated with oversight and transparency continue on the local level in California. A number of local governments in California have established approval requirements for surveillance technology similar to those in SB1186, including Santa Clara County, Berkeley, Oakland, and Davis.

Intense law enforcement opposition was likely behind both SB21 and SB1186 stalling in the Assembly. Numerous law enforcement lobbying organizations officially opposed both measures, including the California Sheriff’s Association, LA sheriffs, Riverside sheriffs and the California Peace officers Association. Lobbying groups for sheriffs opposed SB1186 even before their agencies were included under the requirement for local government approval.

SB1186 also faced opposition from the Stop LAPD Spying. The anti-surveillance coalition said the bill doesn’t go far enough. Stop LAPD Spying wants an outright ban on surveillance equipment, saying, “These tools cannot be entrusted to the police; California legislative history is littered with failed police accountability bills.”

“Governing bodies like the Los Angeles Police Commission and Los Angeles City Council, against overwhelming community opposition and clear evidence of racial profiling, consistently rubber stamp and approve the acquisition and use of surveillance technologies such as drones and programs like Suspicious Activity Reporting (SAR).”

Access

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. The federal government often provides 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.”

SB1186 would have prevented local police in California from obtaining technology without public knowledge and would provide an avenue for concerned residents to oppose and stop the purchase of spy gear.

Impact on Federal Programs

Information collected by local law enforcement undoubtedly ends up in federal databases. 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.

The federal government encourages and funds surveillance technology including ALPRs, drones and stingrays at the state and local level across the U.S. In return, it 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.

SB1186 could have taken an important first step toward limiting the use of surveillance technology by addressing it at the local level.