Privacy Groups See Local Momentum for Surveillance Transparency Bills
Momentum could be growing for transparency bills that would require public notice and comment before using new surveillance technologies, privacy advocates said in interviews. Several California localities passed or are close to passing measures, and local politicians in other states also are promising measures. A California Senate panel plans to take up a bill Tuesday. Advocates said the state bill could be stronger, but law enforcement remains opposed to what it says could guide criminals.
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The American Civil Liberties Union found legislative sponsors for the group’s model bill in about 20 U.S. localities, said ACLU Advocacy and Policy Counsel Chad Marlow. Five enacted laws: Seattle; Nashville; Berkeley and Santa Clara County, California; and Somerville, Massachusetts, Marlow said. Bills that are close or showing movement include Davis and Oakland, California; St. Louis; Cambridge, Massachusetts; and New York City, where a new version of last year’s Public Oversight of Surveillance Technology Act will likely be introduced in weeks, he said. It’s not just politically blue areas, with ACLU identifying sponsors in Hattiesburg, Mississippi, and Pensacola, Florida, he said.
The Davis City Council plans a procedural vote Tuesday to finalize passage of its surveillance transparency bill. The Berkeley City Council voted unanimously last week to pass a surveillance transparency ordinance agreed to March 13 (see 1803140036). An Oakland City Council committee plans to weigh surveillance legislation April 10, said an agenda. Other such measures are likely to get votes soon in Alameda County, and Richmond, California, and by the Bay Area Rapid Transit board, said Oakland Privacy Advisory Commission Chairman Brian Hofer, who works with California localities on surveillance-transparency rules.
Davis and Berkeley bills “move the ball forward, not just in California but nationally,” said Dave Maass, Electronic Frontier Foundation senior investigative researcher. It encourages community groups “to know that this is doable” and proves “to other cities that this is not going to break law enforcement … and instead will enhance public safety as well as community trust,” Maass said. More cities passing bills adds pressure for other cities to do likewise, Marlow said. Hofer agreed real-world examples of surveillance transparency laws make it easier to win support from skeptical law enforcement. The Davis bill is “super strong” and didn’t depart much from the ACLU model, said Hofer. The Berkeley law’s enforcement mechanisms are weaker, but privacy advocates got “95 percent” of what they wanted with the bill, Hofer said.
President Donald Trump’s immigration policies increased support for surveillance transparency bills, privacy advocates said. Originally, surveillance-transparency bills appealed mainly to libertarians who oppose government spying and racial-justice and income equality advocates, Marlow said. After Trump’s election, immigration proponents emerged as “a third pillar,” because the bills would stop local law enforcement from surveilling undocumented immigrants and sharing that information with federal agencies without citizens’ knowledge and preapproval from local governments, he said.
California sheriffs oppose a state law because they don’t want potentially sensitive data made public, said California State Sheriffs’ Association (CSSA) Legislative Director Cory Salzillo in an interview. They see the transparency proposal as “providing a road map to criminals as to how and when law enforcement agencies deploy surveillance technology and techniques,” he said.
State Legislation
The California Senate Public Safety Committee will hear a bill (SB-1186) Tuesday by Sen. Jerry Hill (D) that's about the same as last year's SB-21, which was passed by the Senate but failed in an Assembly committee (see 1709050027). The proposal, which again must survive at least six committees across the Senate and Assembly, last year received lukewarm support from privacy groups and opposition by state sheriffs and district attorneys.
EFF “would like to see it strengthened,” but won’t take a formal position on the Hill bill until it’s further along, said Maass: “It’s good to see the legislature take up this issue.” It’s too soon to support or oppose the California bill, but it’s weaker than local measures in current form, Hofer said. It’s good the state bill wouldn’t pre-empt the local ordinances, but rather provide baseline protections cities can add upon, he said. Last year’s bill started out “not great,” but ACLU supported it after amendments, Marlow said.
California sheriffs remain opposed to Hill’s proposal and haven’t “identified particular amendments that would address our concerns,” Salzillo said.
Law enforcement never budged in its opposition to last year’s bill, even after amendments to appease them “watered down” the measure by adding various exemptions, Hofer said. SB-21 died in the Assembly Appropriations Committee, which never gave a reason for not voting, Maass said. “It’s a mystery what happened in the end.” For cost and other reasons, “lots of bills die there,” said Salzillo, saying he doesn’t know why particularly for SB-21.
A spokesman for committee Chair Lorena Gonzalez Fletcher (D) didn't comment. The committee’s Aug. 21 analysis of SB-21 reported “[u]nkown but significant costs, in the millions of dollars,” for local law enforcement; “[u]nknown but significant” costs for the California DOJ; and “moderate” costs of about $500,000 for the California Highway Patrol.
A Maine surveillance transparency bill failed earlier this year. Whereas the California bill would require local reviews, LD-823 would have required state police to get approval for surveillance technology from the legislature, Marlow said.