Illustration by Gina Ledor
The Berkeley City Council is considering an Ordinance proposed by the Police Review Commission (PRC) which would govern the approval, acquisition, and use of surveillance technology throughout the branches of the Berkeley City government.
The Ordinance was presented to the City Council on December 5 for a first reading. The proposed Ordinance, called The Surveillance Equipment Use and Community Safety Ordinance, requires that the acquisition and use of surveillance technology, such as license plate readers, police body cameras, and fire department thermal imaging technology, be transparent to the city’s residents and overseen by the elected governing board of the city.
Currently, when surveillance technology and equipment is acquired by Berkeley City departments, the technologies are not subject to public discussions regarding the potential intrusion into civil liberties and violation of privacy rights associated with the use of such technologies.
Chris Hoofnagle, faculty director of the UC Berkeley Center for Law and Technology, said, “There is a basic problem that police are allowed to acquire many technologies without any oversight … I am skeptical of police self-oversight because police are often not professional in their self-policing roles and too quick to side with their brethren in disputes between the citizen and the police.” The Ordinance works to directly address this concern, as well as others regarding the rights of the public and the utility of such technologies.
According to the Ordinance draft, “City Council approval is required before: seeking funding for surveillance technology; accepting funds for or donations of such technology; using surveillance technology in a way not previously approved; or agreeing with anyone outside the City to acquire, share or use surveillance technology or the information it provides.” Additionally, the proposal states that, “Before seeking Council approval, the City department must first seek review from the appropriate commission, then the department must submit a Surveillance Impact Report and a Surveillance Use Policy for the proposed technology, to be considered by the reviewing commission at its next regular meeting.”
The Ordinance mandates the City Council’s approval of the requested surveillance technology only after determining “The benefits to the community of the surveillance technology outweigh the costs; that the proposal will appropriately safeguard civil liberties and civil rights; and that, in the City Council’s judgment, no alternative with a lesser economic cost or impact on civil rights or civil liberties would be as effective.”
George Lippman, Chair of the PRC, said, “Transparency in government is essential to democracy, and this Ordinance will give the Berkeley community the information it needs to make informed decisions about police surveillance.”
Regarding the downsides posed by the use of surveillance technologies, Jennifer Urban, director of the Samuelson Law, Technology & Public Policy Clinic at the UC Berkeley School of Law, said, “Mass surveillance technologies collect an enormous amount of data … It is difficult and costly to store and sort through all this data accurately … This can make it harder to get the information needed to answer a question, because it can be lost in the sea of irrelevant data collected.”
Hoofnagle said many police officers are not trained or prepared for intelligence roles, as intelligence gathering and analysis requires a different set of skills, along with policies, to ensure that the tools are not re-purposed for non-criminal-investigatory or non-support purposes. Hoofnagle cited examples of police officers using surveillance technologies to track their partners or moniter relatives’ phones.
In regards to the value of surveillance, Hoofnagle and Urban said the utility of these technologies are often exaggerated, though Hoofnagle explained his support for the police acquisition of military-grade weapons because “Our police need to be at least as well armed as our citizenry.”
Regarding the surveillance technology Ordinance, Urban said, “A ‘mass surveillance’ society — in which all citizens are observed some or much of the time – is a very real near-future possibility. This creates a strain on our privacy and Fourth Amendment law … Berkeley’s proposed Ordinance is an important positive step because it would allow the public to know when surveillance technologies are being considered. The City Council should be able to review proposals and decide whether or not to approve a technology. And the public should be able to weigh in with its thoughts.”