There is nothing radical about SB21 per se, other than it hasn’t been done before as to surveillance equipment. California spends more time discussing and imposing regulations on barber shops and taco trucks than on equipment capable of tracking my whereabouts in real time, locating me within my own home, place of worship or doctor’s office, tracking my face as I walk about town.
-Brian Hofer, Oakland Privacy
Ground-breaking surveillance transparency legislation is making headway in the California state legislature. On May 31, the Senate passed SB21 on a vote of 21-15. The measure passed the Assembly Public Safety Committee on June 27, and now must clear the Assembly Privacy Committee before going to the floor for a vote by the full Assembly.
The premise of SB21 is pretty simple [text of the bill is available here]: Law enforcement will be required to explain to the public why they want surveillance equipment, how they plan to use it, and how they will protect the privacy and civil liberties of residents. All this will happen BEFORE surveillance technology is deployed. After it’s been deployed, law enforcement should report to the people on how the surveillance equipment was used, and what data was collected.
The bill is similar to model surveillance transparency legislation developed by the ACLU and endorsed by Defending Rights & Dissent that has been introduced and or passed in many localities. Read more about that campaign here.
Brian Hofer, Chair of the City of Oakland’s Privacy Advisory Commission and a member of Oakland Privacy, provided this testimony at the Public Safety Committee earlier this week:
My name is Brian Hofer. I’m a member of Oakland Privacy, and I chair the City of Oakland’s Privacy Advisory Commission. I have worked with the counties of Santa Clara and Alameda, the cities of Berkeley, Palo Alto, Richmond, and Oakland, and the Bay Area Rapid Transit District on similar legislative efforts as the proposal before you. Counting votes at the procurement stage, or at the second stage, the underlying use policies themselves, I’ve been a part of thirteen consecutive unanimous yes votes throughout the greater Bay Area, which I highlight to demonstrate that SB21’s approach is reasonable, collaborative, and politically viable. I thank Senator Hill for his leadership in moving this bill, and ask that you support it.
As someone that has been to the finish line, I can share with you what the impact of SB21 adoption will look like. What we have seen in practice, even in a place as politically aggressive as Oakland, is not a prohibition on surveillance equipment or the educating of criminals as some fear, but rather a narrowing of use. SB21 will encourage mindfulness, forcing us to think about potential impacts and consequences of use prior to implementation.
Senator Hill’s SB741 and 34 are proof that such oversight and transparency is not fatal to legitimate police work. Although the District Attorney’s association is opposing SB21 for what I assume are typical turf battle reasons, they would be wise to look to Alameda County. I had the pleasure of working with DA O’Malley on a use policy for the new cell site simulator she was acquiring. After a public discussion and feedback, which resulted in a strengthened policy and an annual report requirement for added transparency, we went to the Board united and received a unanimous yes vote.
Oakland also implemented a ground-breaking policy after a public discussion before the Privacy Commission and collaborating with our police department. In both instances, the public participation resulted in the proponent acquiring controversial equipment, the political buy-in generated good will, and the increased transparency from the public discussion and accountability led to improved trust of law enforcement. This trust, good-will, and cooperation with and from law enforcement should themselves be seen as valuable public safety goals, and benefits of SB21 adoption.
In response to several of the opposition arguments:
- No law enforcement agency in California has quit using cell site simulators or license plate readers due to SB741 or 34’s passage into law last year.
- Nowhere in the language of SB21 does it require LE to reveal the technical capabilities of the equipment; it only requires that you describe potential use. None of the policies I’ve written provide more than a cursory explanation of how the equipment works, which makes sense because it’s a use policy, not a technical manual. The opposition letters contain very misleading language on this point.
- At the county and city level, equipment acquisition is already publicized and publicly noticed on an agenda, when accepting or allocating funds, or requesting Board or Council sign-off to enter into a contract or purchase agreement. SB21 does not add publicity where it did not previously exist.
There is nothing radical about SB21 per se, other than it hasn’t been done before as to surveillance equipment. California spends more time discussing and imposing regulations on barber shops and taco trucks than on equipment capable of tracking my whereabouts in real time, locating me within my own home, place of worship or doctor’s office, tracking my face as I walk about town. We have use policies for automobiles, office equipment, and other government owned property, requests for proposals and contracting guidelines, annual reports and audits of budgets, crime statistics, and so on. SB21 treats surveillance equipment like any other proposal. Come to the governing body and justify your proposal. Come back later and tell us how you used the equipment.
By what standard is this controversial or unreasonable?