SACRAMENTO, Calif. (May 2, 2017) – Last week, a California Senate committee passed a bill that would require all law enforcement agencies in the state to get local government approval before acquiring 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) prefiled Senate Bill 21 (SB21) on Dec. 6.The legislation would require law enforcement agencies to get advance approval from their local governing body during a public meeting before acquiring new surveillance technology. The bill would also require police to develop a use policy for all existing surveillance technology, as well as any acquired in the future. The policy would have to “ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individuals’ privacy and civil liberties.” The policy would also have to be approved by the local government body. during a regularly scheduled public meeting. If the approval fails, the law enforcement agency would have to discontinue use of the surveillance technology.
Along with local government approval, SB21 would require law enforcement agencies to submit a biennial transparency report on surveillance technology. The legislation would also strengthen existing law requiring government agencies to publish privacy policies for automated license plate readers (ALPRs) and cell-site simulators.
The Senate Judiciary passed SB21 on April 25 by a 5-2 vote.
A coalition of organizations have coalesced in support of this legislation, including the ACLU of California, Media Alliance, the Electronic Frontier Foundation (EFF) and the Tenth Amendment Center. The EFF recently published an article urging support for SB21.
“California should end unconstrained police surveillance. There is a clear way to defend against secret acquisition and arbitrary use of policing technologies that invade the privacy of thousands of innocent people per usage: pass bills like S.B. 21 to ensure the law is on our side.”
Earlier in the legislative process, important provisions relating to local government approval were amended out of the bill. Activists put the pressure on and were able to get these provisions put back in. With local approval back in place, activists on the ground say they expect stronger law enforcement opposition.
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.”
SB21 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.
SB21 was referred to the Senate Appropriations Committee where it must pass by a majority vote before moving forward in the legislative process.