Since the turn of the 21st century, local law enforcement departments have stocked up on unprecedentedly invasive surveillance tech for monitoring their communities, with little to no oversight. But a counterrevolution is brewing. On May 1, the Oakland, California, City Council unanimously adopted the Surveillance and Community Safety Ordinance, the nation’s strongest law governing how police acquire and use surveillance technologies. While Oakland may be at the head of the pack here, it isn’t alone: In the past few years, local governments across the country have become laboratories for developing new approaches to reining in policing tech, and the solutions they’ve been cooking up are starting to spread to more cities and towns that are concerned about overreaching or secret police surveillance of their communities.
After Sept. 11, thanks in part to massive federal grants with few strings attached, local law enforcement agencies all over the United States began steadily acquiring and deploying powerful new policing tech. These surveillance technologies, often acquired and deployed unbeknownst to residents or city councils and usually without court approval or oversight, include cell-site simulators for tracking cellphone-call details (often referred to as stingrays), automatic license plate readers for tracking cars, drones for conducting aerial surveillance, gunshot-location technology that relies on citywide networks of high-powered microphones, and predictive policing algorithms that tend to push police to focus even more on already overpoliced communities. This trend of unrestrained acquisition and use of surveillance tools has been dubbed by some critics as “policymaking by procurement,” with important decisions being made about police power based simply on the fact that the feds were willing to cut a check for the tech, rather than being based on careful consideration by local elected officials.
Now, however, those officials and their citizens are catching on to what’s been happening. Over the past five years, a growing number of local governments have begun to pass laws demanding transparency and accountability around the use of surveillance technologies and other data-gathering technologies in their communities. Santa Clara County, California; Nashville, Tennessee; Seattle; Somerville, Massachusetts; Berkeley, California; and Davis, California have all adopted ordinances and policies similar to Oakland’s. More than a dozen other municipal, city, and state governments are considering similar bills, and more than 30 civil rights and civil liberties organizations recently announced support for a bill in California that would impose similar requirements on every local government in the state.
This steady spread of what some have described as “privacy localism” has been encouraged through the work of the Community Control Over Police Surveillance coalition, led by the ACLU. That coalition has proposed a model bill to establish a system by which localities can govern and oversee the use of police surveillance technologies. The ACLU’s Northern California affiliate also published a guide for local governments that are considering whether and how to regulate surveillance in their communities, which has helped carry the idea even further.
The laws that have passed or been proposed so far attempt to ensure three key features: accountability, by requiring approval by the local government prior to the acquisition or deployment of surveillance tech; transparency, by requiring reporting about how that technology is being used and how it is impacting the community; and meaningful community participation in decision-making around surveillance tech, by creating structures for public and expert input.
Several localities, including Seattle, have passed ordinances requiring that before law enforcement can purchase a new surveillance technology, or continue using one previously purchased, it must obtain approval from the city council. Such an approval process can provide accountability to ensure that law enforcement only acquires tools that are appropriate and cost-effective for the community, and provide a check against the secret adoption or improper use of these technologies. Although Seattle’s ordinance exempts cameras, it otherwise applies to any technology that observes or monitors individuals “in a manner that is reasonably likely to raise concerns about civil liberties, freedom of speech or association, racial equity or social justice.”
Oakland’s ordinance, on the other hand, offers a more technology-based definition of what it regulates, including an illustrative list of covered technologies like automatic license plate readers, stingrays, and algorithmic policing tools. In addition to requiring approval, Seattle and Oakland—along with Berkeley and Santa Clara County—also require the city council or county board to approve surveillance use policies for each technology. These policies govern features like the purpose of the technology, what uses are permitted, what data it may be used to collect, and how those data will be accessed, protected, and retained.
In addition to requiring approval of surveillance tech, local governments are also starting to demand transparency around its use. Seattle, Berkeley, Oakland, and Santa Clara County all require law enforcement to publish reports on when and how frequently surveillance technologies were used, what data were collected, how data were shared, compliance with data security standards, and the sufficiency of those standards. Seattle, Berkeley, and Oakland also require reporting on whether the deployment of surveillance technologies disparately impacted particular communities such as communities of color, immigrant communities, or minority religious communities—a crucial but often overlooked component of oversight. Oakland has taken an additional step to guard against violations of public trust and of use policies by prohibiting nondisclosure agreements with surveillance-tech vendors and incorporating robust whistleblower protections.
Finally, outreach to experts and opportunities for public input are also becoming common features of local surveillance and privacy oversight. For example, in 2014, Oakland established a Privacy Advisory Commission—made up of privacy and civil rights advocates, technology experts, and community organizers—to develop privacy and data security policies for its Domain Awareness Center, which conducted surveillance of the port. The commission, which was made permanent in 2016, provides the city with technical assistance and advice on best practices to protect privacy during the use or purchase of surveillance equipment and other technologies that will collect individuals’ data. It also issues annual reports and recommendations concerning the use of, and policies governing, those technologies; holds public hearings on these issues; analyzes relevant federal, state, and local legislation; and drafted the legislation that just passed. Under the new ordinance, the commission will also receive and assess impact reports covering each surveillance tool. These reports provide information like descriptions of the surveillance tech used, their intended purposes, where they are deployed, how privacy and data security risks are mitigated, the tools’ efficacy, and whether there are alternative methods for obtaining the same information.
Even where no privacy commissions have been established and no ordinances have been passed, municipalities have demonstrated the value of offering opportunities for public input around surveillance tech. For example, San Pablo and Alameda City Councils in California canceled their planned expansions of automatic license plate readers after holding public meetings in which residents raised concerns. Similarly, New Orleans recently ended its relationship with predictive policing vendor Palantir. That came in response to public outrage just two weeks after the Verge broke the story that the its police department had been secretly using Palantir’s tech for six years without even the city council knowing.
Despite these gains, the battle for accountability of police tech is still being fought on fronts across the country. On May 9, the Philadelphia Inquirer reported that Newark, New Jersey, installed 62 surveillance cameras that livestream footage to a public online portal. Privacy and civil rights advocates raised the alarm that allowing internet users to spy on city streets and call in anonymous tips of “suspicious activity” to Newark police will threaten residents’ privacy and exacerbate racial tensions. The trial phase of this initiative ends on June 24, so Newark residents have just more than a month to reach out to their local officials and be vocal about their opposition. Oakland may be the most recent city to enact a surveillance-oversight law, but it surely won’t be the last. Instead of investing in more unaccountable police tech, Newark and other local governments should jump on the Community Control Over Police Surveillance bandwagon.