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California Bill Would Require Local Approval Before Police Could Obtain Surveillance Technology

SACRAMENTO, Calif. (Dec. 20, 2016) – A bill prefiled in the California Senate for the 2017 legislative session would require all law enforcement agencies in the state to submit a comprehensive Surveillance Use Policy and would prohibit the acquisition of new surveillance technology without local government approval. Passage would take 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) prefiled Senate Bill 21 (SB21) on Dec. 6. The legislation would require every local law enforcement agency to “submit to its governing body at a properly noticed public meeting on the regular, nonconsent calendar, a Surveillance Use Policy which shall be in writing and made publicly available prior to the public hearing.” The policy would be required to include types of surveillance technology used, authorized purposes for its use, types of data the agency can collect, who has access to information gathered, how long it can be stored, with whom it can be shared, and steps the agency will take to ensure privacy protections are maintained.

Before California law enforcement agencies could obtain new surveillance technology, they would be required to submit and get approval for an amended policy including the new technology

SB21 would also require local government approval before the acquisition of any new surveillance technology.

A law enforcement agency shall not acquire surveillance technology unless approved by its governing body by adoption, at a regularly scheduled public meeting held pursuant to the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code), of a resolution or ordinance authorizing that acquisition and incorporating the Surveillance Use Policy required by this section.

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.”

SB21e would prevent 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.

SB21 takes an important first step toward limiting the use of surveillance technology by addressing it at the local level.