The Berkeley City Council voted unanimously this week to strengthen its approach to “surveillance technologies,” and has reportedly become the first city in the nation to do so, according to the community coalition that drove the initiative forward in its fight for privacy rights.
Tuesday night, council members spent about three hours, of a five-hour meeting, hearing some public comment then painstakingly tweaking the language and scope of the new surveillance ordinance under consideration. The compromise measure from Mayor Jesse Arreguín’s office, as well as Councilwomen Kate Harrison and Sophie Hahn, sought to find a middle way between a more demanding Police Review Commission proposal and a competing item from city staff.
The compromise, its proponents wrote, “seeks to establish a thoughtful process regarding the procurement and use of Surveillance Technology that carefully balances the City’s interest in protecting public safety with its interest in protecting the privacy and civil rights of its community members.”
Supporters said they want to put civil liberties and civil rights at the heart of any use of surveillance tech by the city, and require council approval when staff seeks to get a new tool. Officials would have a say in the policies that govern surveillance tools, and would get annual reports on them. Those reports would include whether data was shared, and with whom, where surveillance happened, whether complaints resulted, and information about costs and data breaches, among other issues. There are carve-outs in the ordinance to protect confidential or otherwise privileged information.
The ordinance focuses on devices that are “intended to collect audio, electronic, visual, location, thermal, olfactory, biometric, or similar information specifically associated with, or capable of being associated with, any individual or group.”
That could cover, but is not limited to, “cell site simulators (Stingrays); automatic license plate readers; body worn cameras; gunshot detectors (ShotSpotter); facial recognition software; thermal imaging systems, except as allowed under Section 2(d); social media analytics software; gait analysis software; and video cameras that record audio or video and can remotely transmit or can be remotely accessed.”
City staff has said Berkeley does not have most of these systems, and already goes through a public review and approval process for those it does. There’s no facial recognition software, no Stingray cellphone trackers, no “driver location data” collected. ICE cannot access Berkeley databases. The city has no secret contracts, staff has said, and there already are protections in place to prohibit the sharing of data that’s collected, for example, through automatic license plate readers.
But the coalition behind the ordinance, which included members of Oakland Privacy, the ACLU of Northern California, and the Council on American-Islamic Relations, called the new law “groundbreaking,” even with the compromises put forward by the mayor. The group said the process involved 20 months of review by citizen commissions, privacy advocates, city staff and elected officials. Berkeley’s Peace and Justice Commission and the Disaster and Fire Safety Commission also weighed in.
“Given the president’s rhetoric of increased surveillance of mosques, the Muslim community is particularly concerned with the unfettered use of surveillance technology and how it’s being shared,” said Sameena Usman, with the Council on American-Islamic Relations’ San Francisco Bay Area Office, in a prepared statement from the coalition. “A strong use policy would ensure that our civil liberties and privacy will be protected.”
Elliot Halpern, of the ACLU of Berkeley/North East Bay, said he hopes Berkeley can be a leader in the effort to protect privacy and limit surveillance.
“In other parts of the State and country it has … been disproportionately used on racial, religious, LBGT groups and 1st amendment protests,” he wrote previously, on the “Berkeley Considers” website where the city collects public input. “There must be transparency and accountability once this equipment is put into use.”
Not everyone has been convinced, however.
Zach Cowan, former Berkeley city attorney, wrote on “Berkeley Considers” that the proposal was “a solution in search of a problem.” He also noted that the PRC had not been able to document a single misuse of “surveillance technology” within the city. Cowan described the PRC item as a “burdensome and paper-intensive approach, incidentally one that threatens individual employees with civil and criminal liability for doing their jobs.”
Parts of his comments referenced the initial PRC proposal, which sought to make “a willful or intentional violation of the ordinance or Surveillance Use Policy a misdemeanor, punishable by a fine of up to $1000 per violation.”
The mayor’s proposal took away the possibility of misdemeanor charges and fines, and gives the city 90 days to fix any violation that is found. If the city fails to act within that time, only then is there room for legal action. Individual employees are not subject to liability, under the new law. And there’s a $15,000 cap on the attorney’s fees a plaintiff could seek from the city.
The mayor’s proposal also changed the “willful or intentional” standard proposed by the PRC, in the case of violations, to an “arbitrary or capricious” standard. City attorney Farimah Brown said the latter is the normal legal standard, and is well-supported by case law, as opposed to the “random” alternative that was presented in the PRC language.
Staff previously raised other qualms as the process unfolded. The Berkeley Fire Department, earlier in the year, said it feared the PRC proposal might limit the use of thermal imaging cameras during firefighting. And the Berkeley Police Department worried the PRC version would have a negative impact “on law enforcement investigations and the apprehension of individuals that commit crimes in Berkeley.” But the chiefs were able to work with the mayor and other officials to have those issues largely addressed.
City unions will still have a chance to weigh in and suggest their own changes before the law can go into effect. There was no indication as of this week as to which unions would be involved or how long that process might take.
As with any new policy, open questions remain. The city has expressed significant concern about the “workload and staffing implications related to the administration of the proposed acquisition, use, reporting, and data tracking requirements,” as noted in a report by the police and fire chiefs earlier this year.
Councilwoman Linda Maio said Tuesday night she shares the unease about the potential burden on staffing.
“It just feels like a huge amount of make-work to me before we know how it really hits the fan,” she said.
Santa Clara County was the first jurisdiction, in 2016, to pass a similar ordinance related to municipal surveillance, according to the ACLU. It remains to be seen whether other cities and agencies will follow Santa Clara and Berkeley’s example. According to the coalition that has been pushing for the ordinance, Davis, Oakland, Alameda County and BART are among others in the Bay Area considering their own versions of the ordinance.