response

V ESSAY T H E E N D O F T R U S T 0 2 2 4

For example, the January 2018 surveillance report on the sheriff office's use of body-worn cameras (BWCs) goes into detail about the costs and data sharing of the technology. It notes that "there were 861 files of evidence" shared with the District Attorney's office that year, and "four California Public Records Act requests for BWC footage." Once approved, the surveillance reports are available online for any member of the public to view.

"The ordinance does not prohibit the acquisition or use of any technol­ ogy, but rather it requires thoughtful and thorough discussion, and policies are approved by the board of supervisors before acquiring it," Simitian said.

Just like in Boston, in 2010 the City of Seattle had acquired drones with no public process and no articulation of any policies governing usage and data retention. The strong opposition that resulted when the purchase of the two drones became public not only led to a halt to the drone program, but also sparked efforts towards creating what would become one of the country's first surveillance ordinances.

Shankar Narayan, Technology and Liberty Project Director for the ACLU of Washington, said that the first version of the ordinance that was passed in Seattle later that year was ineffective, left loopholes, and lacked enforcement

anisms. He believes that the second version of the ordinance, which was passed in 2017 despite pushback from police, contains stronger language that rcmeches these problems and clearly defines surveillance technology.

e egislation states that it intends to "govern the acquisition and use of

« , , fnaj equipment and that the city's use of surveillance technologies nf f mCU e sPec^c steps to mitigate civil liberties concerns and the risks of mformanon sharing with entities such as the federal government; and should incorporate racial equity principles into such protocols."

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c no ogy possessed by Seattle began in March of 2018.

0 Camille Fassett • It Takes a Village 0 2 2 5

Santa Clara County's and Seattle's ordinances are powerful examples of how jurisdictions nationwide can proactively address mass surveillance and maintain transparency. Since their implementation, several regions are considering similar legislation.

These efforts are part of the ACLU's Community Control Over Police Sur­ veillance (CCOPS) campaign. Launched in September 2016, it is a partnership between the ACLU and other national organizations, activists, and community members, many having fought for a seat at the table in police decision-making processes for years.

The CCOPS campaign has created a model bill for cities interested in passing legislation that applies transparency and public empowerment principles to government agency acquisition processes. The model bill was developed by a coalition of civil liberties groups around 2014, and has been enhanced over the years in response to feedback from different cities that have adopted it, according to Tracy Rosenberg, a member of activist group Oakland Privacy and Executive Director of Media Alliance.

"The City Council finds it is essential to have an informed public debate as early as possible about decisions related to the funding, acquisition, and deployment of military and surveillance equipment by local law enforce­ ment," begins the ACLU's CCOPS+M model bill, which also covers the use of military equipment.

In a post to its national blog about CCOPS, the ACLU wrote that "the effort's principal objective is to pass CCOPS laws that ensure residents, through local city councils, are empowered to decide if and how surveillance technologies are used, through a process that maximizes the public's influence over those decisions." It continues, "Passing CCOPS laws would empower city councils to say 'no' to secret surveillance sharing agreements between the feds and local police."

Around the time of the Snowden revelations in 2013, the City of Oakland, Calif., had been working toward constructing a massive surveillance project. It would have comprised a network of over seven hundred cameras, facial rec­ ognition software, license plate readers, and a sensor that identifies gunshots

OpenMe.com V DATA

The website freedom-to-tinker, com, hosted by Princeton's Center for Information Technol­ ogy Policy, published a study highlighting a particularly invasive data-mining software called "session replay scripts" that are being used by an in­ creasing number of websites. According to the study, session replay scripts "record your keystrokes, mouse movements, and scrolling behavior, along with the entire contents of the pages you visit." Unlike most third-party analytics services, which provide aggregate sta­ tistics of your searches and the pages you visit, session replay scripts actually record your individual browsing session in its entirety, "as if someone is looking over your shoulder."

The study lists tens of thou­ sands of websites that were either found recording users' browsing sessions or have the capability to do so. Among the big-name sites are xfinity.com, windows.com, texas.gov, petco. com, and fandango.com. The following sites were also found on that list. —Landon Bates

openme.com statuscake.com everyinteraction.com globegain.com

titswanted.com realclearlife.com sexlikereal.com rainbowlight.com oopscum.com

cumexposed.com springhappenings.com cumrainbow.com hometocome.com

hotrawsex.com sexyrealsexdoll.com

wallsneedlove.com

myfirstdrone.com mostlypaws.com bunnycart.com oldmaturepussy.com borrowmydoggy.com

sweetpiss.com nutsaboutgranola.com germangoogirls.com aloyoga.com disgustingmen.com guavajuicebox.com mom-fuck.me

drinkmorewater.com guardyoureyes.com saturatetheworld.com hidemyass.com

kissflows.com fluidmeet.com

dontfear.ru seekurity.com webtegrity.com securethoughts.com

beget.com itmydream.com

babylegs.com neurohacker.com daydreamdaycare.com thatspersonal.com

mykidneedsthat.com thinkingphones.com bringmethat.com lossofsoul.com pissedconsumer.com

fond^f^^sxmm^ publicdesire.com wealth ify.com transparentcontainer.com salesoptimize.com

opulentitems.com wearecontent.com

O Camille Fassett • It Takes a Village 0227

by sound. A group of concerned citizens quickly mobilized against this effort and successfully limited Oakland's adoption of these technologies. The city council eliminated the project's particularly concerning elements, like facial recognition software and data retention, and created a landmark committee of citizens to oversee the remaining pieces of the project.

This citizen committee became a privacy commission that advises the city council, and years later has championed an ordinance mandating transparency and public involvement in law enforcement use of surveillance equipment. In addition to this new approval process, the ordinance also includes whis- tleblower protections.

"The whistleblower protections affirmatively state retaliatory actions, including personnel actions, are prohibited against employees or job appli­ cants for carrying out the ordinance's provisions or complaining about the failure to do so. They provide specific injunctive relief and, when warranted, financial damages," said Rosenberg.

Brian Hofer, a member of the Oakland Privacy Commission, sees Oakland's privacy ordinance as a model that any city could replicate and modify so that each community can determine what levels of government intrusion it is will­ ing to allow. "The beauty of this ordinance is that any city could use the same framework, and come to different conclusions in increasing transparency, and, hopefully, prohibiting misconduct," he said.

On March 13,2018, the Berkeley City Council unanimously approved its own privacy ordinance, setting a strong precedent for surrounding cities. The City of Davis, Calif., followed on March 20. Other jurisdictions in the San Francisco Bay Area-including Alameda County and Bay Area Rapid Transit-are considering adopting similar ordinances based on the CCOPS model bill. Beyond California, Nashville, Tenn., and Somerville, Mass., have adopted ordinances like Oakland's, and similar efforts are underway in Cambridge, Mass., and St. Louis, Mo.

So far, proactive technology oversight measures have mostly been under­ taken at the local level. But in California, a bill is underway that would enact surveillance technology reform at the state level: Senate Bill 1186, introduced by California Senator Jerry Hill.

V ESSAY T H E E N D O F T R U S T 0228

SB 1186 aims to ensure that community members have a seat at the table in decision-making processes regarding police use of surveillance technol­ ogy. It requires public debate and a vote by local elected leaders prior to law enforcement's acquisition of new surveillance technology. Matt Cagle, Tech­ nology and Civil Liberties Attorney at the ACLU of Northern California, said that "SB 1186 makes sure the right questions are asked and answered about surveillance technology from the beginning and smart decisions are made that keep communities safe."

Cagle said that state legislation like SB 1186 "reinforces and builds on the progress that cities like Oakland and Davis have made."

SB 1186 would require each agency to "submit to its governing body at a regularly scheduled hearing, open to the public, a proposed Surveillance Use Policy for the use of each type of surveillance technology and the information collected, as specified," and "prohibit a law enforcement agency from selling, sharing, or transferring information gathered by surveillance technology, except to another law enforcement agency, as permitted by law and the terms of the Surveillance Use Policy." SB 1186 also provides that people can sue agencies that violate such policies and recover attorneys' fees

Similar legislation-Senate Bill 21-died last session after clearing the state

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SB 1186 is supported by a "broad statewide civil rights coalition including organizations fighting for racial justice and immigrants' rights."

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0 Camille Fassett • It Takes a Village 0229

are flexible and broad enough to address a wide diversity of surveillance equip­ ment, from cell site simulators to facial recognition software, and the rapidly evolving nature of technology. In other jurisdictions, communities are fighting for more specific legislation that responds to specific technologies being deployed.

In Northampton, Mass., the police department proposed drastically increasing the number of surveillance cameras in the city's downtown area. Concerned by this expansion of police power, privacy advocates drafted an ordinance that established restrictions on the use of cameras in public areas. The police chief had admitted that the department would turn over images captured by their cameras to any law enforcement agency that requested them, including ICE. "This would undermine the sanctuary city designation that we've embraced by allowing ICE to use images upon request," said William Newman, an attorney with the ACLU of Massachusetts.

Newman noted that the threat of expansion of cameras sparked awareness among the public of the dangers of surveillance. "This debate has opened up the potential for Northampton to more widely address surveillance tech­ nology," he said.

After the city council passed an ordinance limiting the use of city-owned cameras in Northampton's business district, the mayor vetoed it. In a strong defense of the privacy of Northampton residents, the city council overrode the mayor's veto and voted to uphold the ordinance in January.

Crockford agrees that people care more about their right to privacy than ever before, and cites Edward Snowden's 2013 revelations as a significant reason people are aware of government surveillance. "Privacy is a negative value-many people only realize it's valuable when taken away, like a hidden necessity."

And as the fight for privacy rights gains momentum, so, too, does the movement for privacy ordinances.

In contrast to strong policies mandating community involvement and police accountability, the current status quo puts the burden on the public to fight with government agencies to glean information from public records requests and whistleblowers.

V ESSAY T H E E N D O F T R U S T 0230

McMillen says that without use policies and communication between the city and residents, the community can't hold the government accountable for its use of drones or any other type of surveillance technology. "It's intim­ idating, especially to members of the community who are afraid to speak up for fear of law enforcement retaliation."

Santa Clara's ordinance requiring transparency in surveillance technologies has been enforced since 2016. Since then, some equipment proposals have been adopted, some rejected, and some modified after feedback or criticism. The Santa Clara County Sheriff's Department submitted a use policy and a surveillance-impact statement as part of its proposal for officer BWCs. After civil liberties groups initially opposed the broad draft language, the Depart­ ment updated the text to address some of their concerns. Ultimately, the proposal was approved.

But after hosting public debate on a different proposal, as required by the ordinance, the Santa Clara County Board of Supervisors placed a moratorium on facial recognition use with police officer BWCs.

[The ordinance] has forced people to answer questions like, When and how will we use this? If we acquire data, who will keep it, and who will have access These questions weren't asked, let alone answered, before it was required," Santa Clara County Supervisor Simitian said.

Privacy ordinances do not necessarily stop police departments from obtaining or misusing surveillance technology. But legislation is one possi-

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O Camille Fassett • It Takes a Village 0231

and would have measures in place to hold law enforcement accountable if and when the tools were misused.

"Never once has a police state failed to use technology and surveillance to control a population. Never once has a ruling party conducted mass surveillance without leading to great harms," Hofer told me. "Unfettered use always leads to bad things, and not one case breaks that-there is no friendly test case for mass surveillance. It always leads to humanitarian and civil liberties abuses." •