Berkeley Off To A Shaky Start Implementing A Surveillance Policy Framework

Come to our premiere “First Fridays” event in Berkeley on September 6th, 6-7:30pm:

TICKETS

A Raw Thought Surveillance Salon (use the discount code “AaronSwartzDay” for a super-discounted ticket :-)

Here’s a killer track from the DJ headlining the dancing portion of the evening.

Tracy Rosenberg is a co-founder of our Aaron Swartz Day Police Surveillance Project (ASDPSP). Tracy is a coordinator of Oakland Privacy. The organization is one of the recipients of this year’s EFF Pioneer Awards.

Updated Introduction, September 2, 2019:

I spent some more time speaking with Tracy Rosenberg, and needed to clarify a lot of the information in the below interview from August 27. (Note that a few additions and clarifications have also been made to the interview itself.)

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. (Here’s a video of the meeting from July 11 2017, where this is all agreed to by the Mayor and the City Council.)

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.

Let’s take a look at that bad language now:

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.”’

or

Sharing the data with any outside law enforcement or prosecutorial agency for any official law enforcement purpose (absent federal immigration enforcement officials).

The bottom line is that the people of Berkeley voted for and successfully passed a surveillance ordinance way back in March of 2018.

It was hailed at the time at being the first of its kind, but now, after a year and a half, Berkeley’s City Manager, Dee Williams-Ridley and Chief of Police, Andrew Greenwood, keep coming up with reasons for not implementing it completely.

When our #ASDPSP team first read Tracy’s recent report on the Oakland Privacy website about Berkeley’s Mission Creep and the privacy & surveillance situation going on right now in Berkeley, California, we had all sorts of questions.

So it seemed like a good time to do a quick interview with Tracy to clarify what’s actually happening.

ASDPSP: So Tracy, help us understand: what could possibly be stopping the City of Berkeley for implementing it’s own privacy ordinance? 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: But now, 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.

ASDPSP: So Oakland Privacy and the ACLU sent the City Council a letter, threatening to sue, if they didn’t get the ball rolling on this surveillance policy?

Tracy: Yes. 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 all this time, we have basically been using the honor system, and taking parking officials word, despite language to the contrary being placed on the books. So both currently and looking towards the future, we have no guarantees that the data won’t be handed over to law enforcement agencies, since there is still no specific policy in place ensuring that parking is the only way that the data will be used?

Tracy: Yes.

ASDPSP: So 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.

ASDPSP: So wait a minute. What happened to the privacy ordinance that the citizens of Berkeley voted in a year and a half ago.

Tracy: They are taking their time implementing it. But, in the mean time, during the City Council Meeting in July of 2017, the council promised to not do anything besides “Parking Management” with the data until the privacy policy is in place and can decide on whether that is allowed or not.

Here’s a video of the meeting from July 11 2017, where this is all agreed to by the Mayor and the City Council.

ASDPSP: Okay so we can see from the clip that the city agreed verbally to NOT allow sharing of data with third parties, or even letting the Berkeley Police Department itself do anything else with the data except use it for Parking Management, until the use policy for the equipment is up and running.

Tracy:  Yes. And also, at this meeting on August 7th, the “current policy” never mentioned that restriction was already put in place in July of 2017. I didn’t even remember actually it until I watched the videotape from now-two-years ago.

ASDPSP: Now my questions is: why is it taking so long to get the use policy done. It’s been a year and half. What’s the hold up?

Tracy: It has been on the slow-mo. Probably still would be if Oakland Privacy and the ACLU hadn’t sent legal letters earlier this spring.

ASDPSP: So they agreed to start the process of approving the surveillance policies for various forms of equipment – that you gave them on a list?

Tracy: Yes. But then, a few weeks ago, at the Police Review Commission subcommittee meeting, there was an obvious shift in the language about how these readers will be used from the public dialogue that happened when the equipment was initially implemented in 2017.

A proposed license plate reader policy adds on such law enforcement uses as: “Supporting a patrol operation or criminal investigation” and “Canvassing license plates around any crime scene.”

So now, Berkeley’s community needs to decide if it will endorse or oppose this after-the-purchase shift. If you live in Berkeley, you can come by our Surveillance Salon on September 6th to learn more about what’s going on. (Note that another meeting is coming up on September 16th, and information about it will be linked from here.)

ASDPSP: Okay. So, let’s talk about this “Police Review Commission subcommittee meeting on August 7th.” Was this a public meeting?

Tracy: Yes. But poorly publicized and in the middle of a work day. No public there but me.

ASDPSP: Who brought up these broad additions we mentioned earlier? Namely, adding that law enforcement can use the data for “Supporting a patrol operation or criminal investigation” or “Canvassing license plates around any crime scene” and the authorization of “sharing the data with any outside law enforcement or prosecutorial agency for any official law enforcement purpose, (absent federal immigration enforcement officials)?”

Tracy: Basically the proposal is to pass through pretty much the same policy (which councilmember Sophie Hahn described in the July 2017 council meeting as “leaky and full of holes”) after the surveillance ordinance as Berkeley had before the surveillance ordinance – and which was never consistent in any way with City Council’s fervent declarations that the only reason for the spying equipment was to free up parking spaces.

It’s a direct quote from Berkeley mayor Jesse Arreguin two years ago that thewhole reason this process is in place is to increase turnover so people can park in our city”. Not a single word about supporting patrol operations, using in criminal investigations or canvassing the vicinity of crime scenes. Not one. That is what we call “mission creep.” And the whole point of surveillance transparency ordinances is clarity about the allowed and the not-allowed uses and the consent of the watched to how they are being watched.

ASDPSP: So this proposed switcheroo seems to clearly go against the will of the people of Berkeley, yes?

Tracy: It certainly goes against what was said by the City Council to the people of Berkeley in the public hearing when the equipment was purchased. The alarm needs to be raised. It’s not my role to tell the people of Berkeley what they should and shouldn’t allow. It’s their decision to be manifested by their elected representatives. But it is my role to say “hey, they said one thing and they’re doing another”. That’s what I’m doing.

See you at 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 :-)

Everyday/Forever (SF Event is November 9, 2019)