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Proposed Oakland Calif. Ordinance Would Take First Step Toward Limiting Surveillance State

OAKLAND, Calif. (Jan. 18, 2017) – The Oakland City Council will consider an ordinance that 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.

Earlier this month, the Oakland Privacy Advisory Commission (OPAC) voted to send draft legislation to the Oakland City Council to establish a local surveillance technology law. The Oakland Surveillance and Community Safety Ordinance would require law enforcement agencies get city council approval subsequent to a properly noticed public hearing before obtaining surveillance technology such as stingray devices, automatic license plate readers (ALPRs), cameras and drones.

The process outlined by the proposed ordinance would require full public disclosure. This would create an environment of transparency and accountability, and would naturally limit the types of equipment police departments can acquire.. The ordinance would also impose reporting requirements allowing the public to analyze the costs and benefits of technologies that monitor and track people in the city.

According to the East Bay Express, Catherine Crump, the co-director of UC Berkeley’s Center for Law and Technology, told the commission the new law “has the potential to have a nationwide impact.”

OPAC unanimously approved the draft language. It now goes to the city council for modification and approval

The proposed Oakland ordinance is in full accordance with the principles adopted by the Community Control Over Police Surveillance (CCOPS) initiative. Last fall, local government officials in 11 cities announced plans to launch legislative efforts to pass ordinances that will 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.

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.”

The Oakland ordinance would prevent local police 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.

The proposed Oakland ordinance takes an important first step toward limiting the use of surveillance technology in the city.