Berkeley Delays Implementing Surveillance Policy Despite Ordinance Passed Over A Year and a Half Ago

New Interview with Tracy Rosenberg of Oakland Privacy and the Aaron Swartz Day Police Surveillance Project (ASDPSP) about Berkeley’s delay in implementing its Surveillance Policy.

Come to our premiere “First Fridays” event in Berkeley on September 6th, 6-7:30pm: A Raw Thought Surveillance Salon (use the discount code “AaronSwartzDay” for a super-discounted ticket :-) TICKETS

The bottom line is that, in July 2017, although several members of the city council promised that the data collected by Berkeley’s license plate readers would never be shared with law enforcement, some badly worded language was also approved, during the same meeting.

That same bad language (for regulating license plate reader data) is now in danger of being accepted as part of the new Surveillance Policy – not as a placeholder until the policy is implemented (as we previously stated).

Turns out that the Oakland Privacy and the ACLU had to write a letter to the City of Berkeley earlier this year, threatening to sue the city, if the city council did not start “creating draft policies & putting them through the approval process.” So, this latest attempt of pushing through bad language from two years ago is just the city council making good on its word of getting started. ^_^

The problem is that we really need to start from scratch writing Berkeley’s surveillance policy, not pick up where we left off, using the bad language proposed in July of 2017.

From the Interview:

ASDPSP: So, in March of 2018, Berkeley passed a surveillance transparency ordinance. The ordinance required that a surveillance policy framework be put in place, similar to the one that currently exists for the City of Oakland (note that the Alameda County Sheriff’s Department is excluded), and is in the process of being put in place for the City of San Francisco.

Tracy: Correct.

ASDPSP: And to date, after a year and a half, a surveillance use policy framework for the data collected by Berkeley’s automated license plate readers has still not been put into place by the City Council?

Tracy: Correct.

ASDPSP: And the reason for this is that that process has been delayed by certain members of the City Council, such as Dee Williams-Ridley, the City Manager, and also by Berkeley Police Chief Greenwood?

Tracy: Yes. They have not been quick to get things moving.

In July of 2017, the City Council (with 3 dissenting votes) expanded the City’s license plate reader “pilot program” by adding 15 additional readers and making the program permanent.

But at that meeting, the purpose of the ALPR equipment was clearly defined as parking enforcement and the issuing of parking citations.

ASDPSP:  So we have basically been using the honor system, and have no guarantees that the data won’t be handed over to law enforcement agencies in the future, since there is still no specific policy in place ensuring that parking is the only way that the data will be used? And without a policy in place, there are loopholes allowing the cops to use the data in other ways?

Tracy: Yes, at a Police Review Commission subcommittee meeting on August 7th, a proposed license plate reader policy included some very broad permanent additions for the way that law enforcement can use the data, such as “Supporting a patrol operation or a criminal investigation” and “Canvassing license plates around any crime scene.”

Also proposed was authorizing sharing the data with any outside law enforcement or prosecutorial agency for any official law enforcement purpose (absent federal immigration enforcement officials).

ASDPSP: Whoa. Hold on there. That’s exactly how we don’t want license plate readers to be used.

Tracy: Yup. Certainly at a minimum, not parking. And pretty much the way most law enforcement agencies currently use license plate readers. For broad law enforcement purposes without probable cause or reasonable suspicion.

 

Executive Summary of Chelsea’s “Grumbles Motion”

Index of Materials re: Chelsea’s Resistance to Two Grand Jury Subpoenas

Executive Summary of Chelsea Manning’s “Grumbles” Motion.

A “Grumbles” motion is actually a “Memorandum of Law in Support of Motion to Release”  (It’s called a “Grumbles” motion because the first people to argue it were Don and Patricia Grumbles.)

But what does it really explain and why is the case law it contains so important in Chelsea’s case?

Read the Executive Summary by Kelly Wright to find out. :-)

Excerpts from the Executive Summary:

If there is no coercive effect to their confinement, either because the grand jury has ended, or because there is no possible way they will be convinced to comply with the order to testify, then the confinement must be deemed punitive, and must end…

Simkin v. US, establishes that incarcerated witnesses must be freed from confinement if conditions arise that makes purging their contempt impossible. This would include not only the conclusion of the grand jury investigation, but cases in which the witness can demonstrate that their convictions make them “non-coercible.”…

To determine whether a witness is incoercible, judges review evidence of their character and beliefs, and if the judge is convinced that the confinement has no coercive effect, then it has, by definition, exceeded its lawful scope. Such a judgment would require the witness’ immediate release…

Some of the factors that may go into making an “individualized determination” as to the intransigence of the witness are:

  1. the length of confinement

  2. the witness’ connection to what is being investigated

  3. the basis for refusal

  4. the presumed need for the witness’ unique testimony

  5. the witness’ community support

  6. the witness’ conduct and demeanor.

     

    Read the whole Executive Summary here.

Chelsea’s Grand Jury Cases: Statements & Legal Documents

Index of Materials re: Chelsea’s Resistance to Two Grand Jury Subpoenas

Updated August 7, 2019

August 7, 2019: Judge Says Chelsea Manning Can Pay Fines, Despite Evidence to the Contrary

Read the  Letter from Chelsea Manning to Judge Anthony Trenga, where Chelsea explains the history of grand juries, after reflecting long and hard on the reasons for her resistance, at the request of Judge Anthony Trenga  (original in PDF)

To keep up with developments, please follow the Chelsea Resists Twitter feed here.      Donate to her Legal Fund here.

Updated Index:

Solitary Confinement Statement From Chelsea’s Support Committee – March 23, 2019

Chelsea is being held in solitary confinement. See the definition of solitary confinement compared to the jail’s own definition of the “Administrative Segregation” conditions under which Chelsea is being held:

Chelsea’s statement March 8th (from her Twitter account):

“I will not comply with this, or any other grand jury. Imprisoning me for my refusal to answer questions only subjects me to additional punishment for my repeatedly-stated ethical objections to the grand jury system.

The grand jury’s questions pertained to disclosures from nine years ago, and took place six years after and in-depth computer forensics case, in which I testified for almost a full day about these events. I stand by my previous public testimony.

I will not participate in a secret process that I morally object to, particularly one that has been historically used to entrap and persecute activists for protected political speech.”

Daniel Ellsberg’s Statement of Support

From the Freedom of the Press Foundation website:

“Chelsea Manning is again acting heroically in the name of press freedom, and it’s a travesty that she has been sent back to jail for refusing to testify to a grand jury. An investigation into WikiLeaks for publishing is a grave threat to all journalists’ rights, and Chelsea is doing us all a service for fighting it. She has already been tortured, spent years in jail, and has suffered more than enough. She should be released immediately.”

Chelsea Resists Legal Defense Fund: https://actionnetwork.org/fundraising/chelsea-manning-needs-legal-funds-to-resist-a-grand-jury-subpoena

Address for writing Chelsea in Jail:

Chelsea Elizabeth Manning
A0181426
William G. Truesdale Adult Detention Center
2001 Mill Road
Alexandria, VA 22314

Dos and Don’ts for Writing Chelsea in Jail (IMPORTANT)

Statement from Chelsea Manning Regarding Grand Jury and Consequences Associated with Her Refusal – March 7, 2019:

Statement from Chelsea Manning Regarding Grand Jury and Consequences Associated with Her Refusal

“Yesterday, I appeared before a secret grand jury after being given immunity for my testimony. All of the substantive questions pertained to my disclosures of information to the public in 2010—answers I provided in extensive testimony, during my court-martial in 2013. I responded to each question with the following statement: ‘I object to the question and refuse to answer on the grounds that the question is in violation of my First, Fourth, and Sixth Amendment, and other statutory rights.’

“In solidarity with many activists facing the odds, I will stand by my principles. I will exhaust every legal remedy available. My legal team continues to challenge the secrecy of these proceedings, and I am prepared to face the consequences of my refusal.”

Past Statements by Chelsea & her legal and suport team:

References: (work in progress – will keep adding to this)

1. Why Chelsea Manning Decided to Go to Jail in Protest, March 8, 2019, by Dell Cameron for Gizmodo https://gizmodo.com/why-chelsea-manning-decided-to-go-to-jail-in-protest-1833164311

“Manning, whose right to remain silent was supplanted as part of the grand jury process, was subpoenaed last month in the U.S. Justice Department’s not-so-sealed investigation into Julian Assange. Her defiance of this secret inquisition, however, is not about protecting the WikiLeaks founder at all.

Manning says she is resisting because she, like many other politically minded Americans, believes grand juries are an illegal instrument designed to aide prosecutors on fishing expeditions; a tool for stripping witnesses of their constitutional rights that has been historically used against peaceful political activists by men in power who would have them labelled “terrorists” and “enemies of the state…”

“Manning’s association with WikiLeaks nearly a decade ago was dissected in exhaustive detail during her 2013 court-martial, in which all manner of evidence about her brief contact with WikiLeaks, including the transcripts of their conversations, was presented. But now she is meant to regurgitate that story based on her own flawed memories while under the threat of prolonged incarceration if she finds any reason to refuse.

“We hope she changes her mind now,” the prosecutor, Tracy McCormick, told the Associated Press.

Although Manning is constitutionally protected from double jeopardy—from being charged twice for the same crime—her political right to silence has effectively been stripped away…”

2. Chelsea Manning Fights Subpoena — Showing How Federal Grand Juries Are Unaccountable Tools of Repression – By Natasha Lennard, March 2 2019 https://theintercept.com/2019/03/02/chelsea-manning-subpoena-grand-jury/

“Manning’s decision to fight her subpoena is an act of resistance against government repression and in defense of a free press.”

 

3. Chelsea Manning’s Lawyers Say No Formal Accusation She Gave False Statements During Court Martial (By Dell Cameron For Gizmodo)

4. Court Unseals Documents Regarding Chelsea Manning Subpoena (Documents are available via Lawfareblog)

5. The 4th Circuit Court of Appeals denied Chelsea’s Appeal & Bail Motion last Monday, April 22. Here are statements from Chelsea and her team: https://www.sparrowmedia.net/2019/04/chelsea-manning-and-her-attorneys-respond-to-4th-circuit-court-of-appeals-ruling-affirming-contempt-and-continuing-her-detention/

6. Chelsea has been let out of her solitary confinement conditions (Administrative Segregation), the definition of which, is nearly identical to the UN Special Rapporteur on torture’s definition of solitary confinement.

 

New Index of Resources re: Chelsea’s Resistance to Two Grand Jury Subpoenas

Chelsea Manning

Chelsea Manning has been in jail 145 days as of August 5, 2019.

We’ve created this new index of all of our resource pages about Chelsea’s grand jury resistance fight.

Included on it is her filed declaration, where she explains why she’s being held and what her life is like in jail:

Declaration of Chelsea Manning

From the declaration:

In jail at ADC, I try every day to maintain my physical, mental, and intellectual capacities, as well as some modicum of human dignity. I live a quiet social life in a housing unit that holds a dozen people, who rotate frequently. I try to occupy myself with crossword and sudoku puzzles in the absence of good reading material. I try to stay positive despite the aftermath of isolation and the knowledge that my life once again is put on hold for a few more years, potentially…

Despite the heartbreak and hardship, cooperation with this grand jury is simply not an option. Doing so would mean throwing away all of my principles, accomplishments, sacrifices, and erase decades of my reputation – an obvious impossibility…

As before, I cannot regain the lost time – which may again extend to years. Repairing the damage to my relationships and both my physical and mental health might never come to pass. Whatever one might make of my principles and decisions, I shall continue to make hard choices and sacrifices rather than relinquish my ethical positions in exchange for mere trinkets of personal gain or self-pleasure in the form of being released…

The idea I hold the keys to my own cell is an absurd one, as I face the prospect of suffering either way due to this unnecessary and punitive subpoena: I can either go to jail or betray my principles. The latter exists as a much worse prison than the government can construct.