California, NYC Lawmakers Seek to Reveal Police Surveillance

The California Senate Public Safety Committee will consider a surveillance transparency bill (SB-21) by Sen. Jerry Hill (D) at a hearing next Tuesday. If a majority of the seven members clear the bill, it would go to the Senate Judiciary Committee. Then the Senate would have until June 2 to pass the bill and send it to the Assembly. Meanwhile, New York City’s Public Oversight of Surveillance Technology (Post) Act next needs a hearing by the council’s Public Safety Committee, but the date isn’t set.

The surveillance transparency measures require public notice and comment for new surveillance technologies that law enforcement want to use. They cover known surveillance technologies plus techniques that may be developed. The Santa Clara and some other local laws provide legislative veto power -- giving lawmakers power to reject law enforcement surveillance plans -- but others, like the California state bill and the New York City proposed law, don't.

Don't force law enforcement to broadcast its techniques to criminals, said California State Sheriffs Association Legislative Director Cory Salzillo in an interview. “If we put out there the type of surveillance we use, what data we are collecting, how the surveillance technology is monitored for security … we’re really setting it up to expose the utility and the security of [the technology] to those who would seek to defeat it or avoid it or manipulate it.” The Santa Clara law and similar measures don’t undermine public safety because all they do is provide transparency and oversight, without constraining use of surveillance technology, Buttar countered. The “sky has not fallen” since Santa Clara adopted its ordinance last summer, but local government is more informed, he said. Transparency laws allow public debate on surveillance technologies before they're put into use and possibly abused, he said.

These early surveillance-transparency measures could inspire similar actions on all levels of government, the EFF official said. Passing the New York City measure could have a big impact given the city’s size and influence on homeland security matters, he said. With federal action unlikely soon, Buttar said, local efforts are “almost like the last line of constitutional defense before the specter of executive secrecy just closes the door entirely on democratic checks.”

A federal bill isn’t a good idea now, said Hill, sponsor of the California legislation, in an interview. “Frankly, I wouldn’t trust the federal government to do it today because I don’t think I would be comfortable or happy with the policy that they would draft.”

California

“We have civilian oversight or we’d be a police state,” Hill said about the need for surveillance-transparency policy like SB-21.

Hill previously introduced and passed privacy bills on license plate readers and cellphone interception technologies, but this year’s bill takes a broader, more future-looking stance, he said. “Rather than try to anticipate and have legislation every year dealing with every new product that they come up with … we felt that it would be better to have a more comprehensive, overall policy that would apply to all the different technologies.” Hill used the Santa Clara law as a model and spoke to County Supervisor Joe Simitian in developing the state bill, he said. One bill covering the entire state is better than many local bills because not every locality may be able to accomplish what Santa Clara did, he said. Local governments tend to be more deferential to law enforcement, he said.

EFF hasn’t taken a position on the Hill measure, but Buttar raised some early concerns he hopes will be addressed. The bill “is a theoretically useful nod to transparency principles but it creates a veneer of process that is far from adequate to justify the passage of a measure that could be read to legitimize law enforcement surveillance.” He worries the measure doesn’t provide for ongoing oversight or regular reporting about surveillance technologies’ effectiveness or impact to privacy, he said. It doesn’t require device-specific use policies, allowing law enforcement to have a one-size-fits-all policy covering all surveillance gear. It’s not clear the bill would prohibit nondisclosure agreements that have allowed prior technologies like cell-site simulators to remain secret, he said. The bill could be strengthened through amendments before passage, Buttar said. But Hill’s “willingness to proceed with so weak a start bodes ill for the outcome,” he said.

State police don’t like the bill for opposite reasons. “It goes too far,” Salzillo said. “We’re not really sure what problem it’s attempting to address.” One big concern is that it reveals to criminals how law enforcement uses surveillance, he said. Sheriffs shouldn’t have to seek approval from local supervisory boards before deciding how best to carry out their public safety duties, he said. Salzillo wouldn’t comment on what impact the Santa Clara ordinance has had. The CSSA plans to testify on the bill at next week’s hearing and is willing to work with the author on amendments, he said. The California Police Chiefs Association also opposes the bill, said Jonathan Feldman, the group’s legislative advocate.

That neither side likes the bill could be taken as a sign it’s good legislation, said Hill, but he agreed with Buttar that the proposal in its current form doesn’t protect privacy as strongly as the Santa Clara law. “I defer more to the privacy advocates,” said the state senator. Hill said he’s working on amendments requiring annual reporting and device-specific policies, but is wary of increasing state costs: “We want to finesse the bill in the way that will hopefully get at the information that we need and as frequently as we need it with reporting without making it too difficult on local cost enforcement and too costly on them to do that.”

New York City

The New York City proposal could have major impact, Buttar said. “For a city so much in the crosshairs to say, ‘As much as security matters to us, we’re going to do this in a democratic way,’ that’s huge,” he said. EFF supports the measure, even though it doesn’t include legislative veto power, because it could provide more evidence about surveillance and spur the public to demand stronger protections, he said. “It’s as much as the city council could do for the moment.”

"New Yorkers should have the opportunity to weigh in on what surveillance measures are being taken in their name,” Council Member Dan Garodnick (D) said in a March 1 news release unveiling the Post Act. “As the Trump administration moves to expand surveillance, New Yorkers deserve to know what, if any, sensitive data could potentially be shared by the NYPD with the federal government.”

The police department opposed the plan. “We try to be as transparent as possible -- but this bill would not be helpful to anyone in New York City,” Commissioner James O’Neill said in March 1 news conference. Deputy Commissioner and attorney Lawrence Byrne said it would expose how to avoid surveillance technologies: “I know of no police department or law enforcement organization or military unit in the United States that has this type of requirement imposed upon them by law.”

Santa Clara County is one place with the requirement, Garodnick responded on Twitter.