Preventing police abuse of surveillance technology: ACLU recommendations

Jessica Farris, a staff lawyer for the ACLU, spoke at ICUJP about the need for oversight of police surveillance. I am including the notes from her talk since I think it is important that we not allow "Big Brother" to spy on us with impunity. The ACLU has some very practical proposals to help us retain some of our Constitutional rights to privacy. 

Jessica Farris of the ACUL

Right now, across California, local law enforcement is taking advantage of millions of federal surveillance dollars streaming into the state. They are unilaterally deciding to apply for federal grants and they’re getting their toys and in doing so, they’re sidestepping the normal oversight processes of City Councils and Boards of Supervisors, and they’re often keeping the public completely in the dark about important community surveillance decisions.

40 California counties and 50 of the state’s largest cities have spent more than $65 million on surveillance in the past decade and few engaged the public or disclosed the policies they use to prevent misuse.

·         Only five out of 90 communities with surveillance hosted public debates for each invasive technology.

·         And only one in five made policies for their equipment publicly available. T

·         hat means that devices ranging from automated license plate readers, to drones, to IMSI catchers, or stingrays (these creepy devices that emulate cell phone towers and can intercept and capture the content of calls, texts, emails, internet activity) that means these were secretly acquired and covertly unleashed on the public. This should not happen.

To help communities ask and answer the right questions about surveillance, the ACLU of California developed a report called “Making Smart Decisions about Surveillance: A Guide for Communities,”

Ordinance.

·         This ordinance would mandate that there is (1) robust public debate every time surveillance technology is considered, (2) that local lawmakers approve each step, and (3) that any surveillance program that is approved includes both a Surveillance Use Policy that safeguards individual rights and transparency and accountability mechanisms to guarantee that the policy is followed.

·         It would ensure that the technology is only used in ways that policymakers have approved and that it’s not misused in secret ways or left susceptible to mission creep, which is a troubling problem we’ve seen numerous times in California. (San Jose drones and LA stingrays)

·         Finally, the ordinance would require law enforcement to disclose surveillance technology they are already using. And that’s great, because we can’t evaluate and fight what we don’t know.

·         Bottom line: an ordinance would ensure that the right process is followed every time and that communities have a say in how time, energy, and resources are spent and a chance to determine whether expensive, ineffective, and overly intrusive technologies create more problems than they solve.

We are looking to pass ordinances in 2-3 key cities in Southern California à statewide bill.

But tough to get people to care.

STINGRAYS

The problem with StingRays is that they use Untargeted, “Drag-Net” Surveillance

They do not collect the cell logs of just the suspect, but rather the owners of all nearby cell phone devices.

·         Police can deduce where and when anyone within the StingRay’s radius travels, whom they call, who called them, and where they are now.

·         And Police wanting to identify all people at a specific gathering only need to obtain a warrant for one member and place a StingRay near the meeting site.

AND StingRays can collect a ton of different data in addition to the call log from an individual’s cellphone. There’s an add-on for the StingRay that allows users to view the real time contents of all calls and text transmitted to and from the phone.

There’s also an inadequate Judicial Authorization problem here.

Agencies request warrants that neither mention the StingRay by name nor explain the StingRay’s capabilities. Agencies use the manufacturer’s non-disclosure agreement with the police’s and sheriff’s departments to justify their secrecy.

·         As a result, judges often think that they are signing a warrant or a pen register, which can collect the call logs of only one device, for traditional law enforcement surveillance techniques because the proposed orders make no mention of the StingRay.

Because of the StingRay’s ability to collect an extensive amount of information from arbitrary members of the public, the public must exercise oversight and hold the police accountable for their use of the product.

The ACLU of California recently filed lawsuits against the Anaheim Police Department and the Sacramento Sheriff’s Department for failure to disclose documents about their StingRay programs under the Public Records Act.

The ACLU of California asked the two departments to disclose (1) their contracts with the manufacturer, (2) whether they seek warrants for the StingRay use, (3) policies governing StingRay use, (4) how much they spend on the StingRay and (5) whether information gathered with the StingRay is retained or shared for any period of time. The agencies refused to produce the documents requested and are now the subject of litigation. Their rationales simply do not justify the secrecy surrounding a device that can jeopardize the privacy of the hundreds of millions of Americans with cell phones.

This could be greatly proscribed with an ordinance like the one set forth in the Making Smart Decisions report.

Second effort towards transparency is our mobile justice app—have you all downloaded it? Have any of you downloaded it? If not, I encourage you to pull out your phones right now and go into your app store and search Mobile Justice CA. Because this app is connecting activists in a great way.

And it’s empowering community members to put a check on law enforcement brutality and change policing in California.

The App allows users to film an incident, which is then automatically sent to the ACLU’s servers so there is no risk that the footage will be lost if an officer smashes your phone or deletes the video.

There’s a WITNESS FUNCTION THAT – WHEN ENABLED – ALERTS USERS WHEN ANYONE NEARBY STARTS RECORDING WITH THE APP.  THIS CAN BRING MORE WITNESSES AND CAMERAS TO THE SCENE TO RECORD WHAT HAPPENS.  JUST a couple months ago, A FEDERAL MARSHAL SMASHED THE PHONE OF A WOMAN LAWFULLY RECORDING POLICE ACTIVITY IN SOUTH GATE.  WE KNOW THIS HAPPENED ONLY BECAUSE A SECOND PERSON WAS TAKING VIDEO.     

We know that video of law enforcement misconduct cannot solve every problem. Systemic injustices underlie policing problems and the challenges we face are far too big for a quick fix. However, the app can help in a number of ways.

·         One way is LOW REPORTAGE: People often don't report misconduct because they suspect they won't be believed. This app helps empower individuals to record and submit video of misconduct, eliminating the trouble of a civilian's word against an officer's word.

·         Another is DELETED VIDEOS: There is always a risk that video of misconduct will be lost, stolen or confiscated, like in Griffith’s case.

o   Another example, late one night last May, a group of officers beat a man named David Silva to death while he was already on the ground. Two witnesses captured the beating by mobile phone video. Officers seized the phone of the witness standing closest to the beating with the clearest shot. When officers returned the phone, the footage was gone. This app again eliminate the risk of confiscated phones or deleted videos because footage is automatically sent to the ACLU.

·         And FORCED TRANSPARENCY: Gandhi said, "We must make the injustice visible." With this app community organizations can request access to the video footage.

o   This app can expose not only when law enforcement breaks the rules, but also ways that law enforcement needs better training.

o   It can help highlight laws that may be unjust and should be changed through our elected officials.

o   We are working right now with partners to develop a web-based platform where the app data can live—like a facebook for activists that will allow immediate response and organizing to trauma and grassroots organizing around issues and problem areas.

We also have all our KNOW YOUR RIGHTS materials covering everything from students' rights and health rights to free speech and encounters with law enforcement.

And ALERTS that allows you to keep up-to-date with important local and statewide efforts and possibilities for activism.

This app is growing into a tool to promote transparency and accountability and better training and more fair and less brutal policing.

Finally, our priority police bill AB 953 is all about transparency. This is the Racial and Identity Profiling Act of 2015 from Assemblymember Shirley Weber, out of San Diego.

As a bit of background: California has one of the poorest racial and identity profiling laws in the country. And this is a problem.

No one should be stopped by police solely based on the color of his or her skin but a 2015 report by a police department that does collect stop data found that Blacks and Latinos are stopped by police at three and two times the rate of whites, respectively -- in large part due to our deeply flawed racial/identity profiling law and training.

·         Despite this, California does not collect, analyze, or make available information about who the police, stop, search or even shoot.

·         Racially biased policing is a problem we can no longer ignore – especially when its consequences can be lethal. Police are on track to kill 1,000 Americans by end of 2015 and California leads the nation in the number of deaths  (100+) so far this year

Dr. Weber’s bill could fundamentally fix the broken law and reduce the epidemic of profiling and police brutality that has been impeding the lives and freedom of far too many people of color in California. 

This bill will

·         Update California’s definition of racial and identity profiling to be in line with federal recommendations by including other demographic characteristics, such as gender, religion, and sexual orientation.

·         Require that California law enforcement agencies uniformly collect and report basic data on interactions with the communities they serve.

·         Establish an advisory board to analyze stop data and develop recommendations to address problems with disparate policing where they exist.

Department of Justice publication which said  [, A Resource Guide on Racial Profiling Data Collection Systems: Promising Practices and Lessons Learned (2000)]

By providing information about the nature, characteristics, and demographics of police enforcement patterns, these data collection efforts have the potential for shifting the rhetoric surrounding racial profiling from accusations, anecdotal stories, and stereotypes to a more rational discussion about the appropriate allocation of police resources. Well-planned and comprehensive data collection efforts can serve as a catalyst for nurturing and shaping this type of community and police discussion.