SACRAMENTO, Calif. (April 4, 2018) – On Tuesday, a California Senate committee passed a bill that would increase oversight and transparency of law enforcement surveillance technology. Passage of the bill 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) introduced Senate Bill 1186 (SB1186) on Feb. 15. The legislation would require 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.
SB1186 would establish separate procedures for a sheriff’s department or a district attorney to establish their own Surveillance Use Policies since they are elected officials.The procedures would include holding a noticed public hearing on the proposed policy, posting the policy on the department’s Internet Web site, amending the policy to include new types of surveillance technology, and publishing a biennial report regarding the department’s use of surveillance technology, as specified.
The bill also would establish procedures for the Department of the California Highway Patrol and the Department of Justice to establish their own Surveillance Use Policies.
The Senate Public Safety Committee approved SB1186 by a 5-1 vote.
The bill passed committee despite intense law enforcement opposition. Numerous law enforcement lobbying organizations officially opposed the measure, including the California Sheriff’s Association, LA sheriffs, Riverside sheriffs and the California Peace officers Association.
A similar measure was put on what is likely a permanent hold after passing the Senate by a 21-15 margin last year. Significant opposition from law enforcement interests throughout the process was almost certainly a factor in stalling SB21.
A spokesperson for the California Sheriffs Association testified in opposition to SB1186 at the committee hearing. The organization opposed SB21 because it included sheriffs offices under the requirement for local government approval. An exception was included in SB1186. The Sheriffs Association representative specifically acknowledged that the new bill exempted sheriffs’ offices, along with DAs, from the requirement just like they wanted. “Nonetheless,” he said the Sheriffs Association is “still opposed…” This time, the organization argues that the mere existence of a surveillance policy teaches criminals how they’ll be watched. He called surveillance oversight “a roadmap” for criminals.
This fits a pattern we see nationwide. Law enforcement lobbies almost always come up with reasons to oppose any restrictions on surveillance. When legislators address their concerns, police lobbyists come up with new objections.
On the other side of the coin, the ACLU came out neutral on SB1186 because sheriffs and DAs were exempted from the local government approval requirement. They asked for an amendment to include these entities, as they were in the original version of SB21.
Sen. Hannah-Beth Jackson sits on the Public Safety Committee. She served as a state prosecutor and supports SB1186.
“Unless we know what law enforcement is doing, how do we know if what they’re doing is appropriate?” she asked during the hearing.
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 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.
SB1186 takes an important first step toward limiting the use of surveillance technology by addressing it at the local level.
SB1186 now moves to the Senate Judiciary Committee where it will need to pass by a majority vote before moving forward in the legislative process.