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Watching Them Watching Us. A Victory in the Political Battle Against Surveillance in Silicon Valley
by JP Massar
Thursday Jun 9th, 2016 8:24 AM
Santa Clara County has become the first jurisdiction in the US to pass a general surveillance equipment regulation ordinance.
After Edward Snowden's revelations in 2013, the Oakland Privacy Working Group (OPWG) catalyzed the effort that led to Oakland's proposed Domain Awareness Center being reduced to the size of a bathtub. And in that two year process the concept that the use of surveillance technology should be subject to the people's input BEFORE being installed and the people's oversight AFTERWARD was established in principle.

Now, Santa Clara County has become the first jurisdiction in the US to write that conception into law. On Tuesday, June 7th, 2016, the Santa Clara County Board of Supervisors voted unanimously for a general surveillance equipment regulation ordinance. As the Mercury News put it:

photo surveillance-drone_zpskjnwofti.jpg The ordinance is aimed at protecting the public's right to privacy from existing and emerging technologies, such as drones, license plate readers, cellphone trackers or things that haven't yet been realized outside of science fiction.

The ACLU of Northern California and Restore the Fourth created an sample ordinance a couple years ago, and have been working with other privacy and civil liberties advocacy groups, including Oakland Privacy Working Group, on getting a version of it enacted into law in various jurisdictions in the Bay Area.

photo joe-simitian_zps1esfuvbw.jpg Joe Simitian, left, a member of the Santa Clara Board of Supervisors, introduced the legislation in Santa Clara County, and led the almost year-long effort for passage. Members of the ACLU, Restore the Fourth, and OPWG went down time and time again to testify as the bill faced opposition from the District Attorney, but it was finally voted out of committee in April, 2016.

According to the ACLU:

The [Santa Clara] 'Surveillance Technology & Community Safety Ordinance' requires:

1. Informed Public Debate & Board Approval at Earliest Stage of the Process - Public notice, and distribution of an easy-to-understand Surveillance Impact Report, and opportunity for meaningful public input prior to moving forward with surveillance technology proposals;

2. Determination by Board That Benefits Outweigh Cost and Concerns - The Board expressly considers costs to fiscal and civil rights and determines whether surveillance technology is appropriate before moving forward;

3. Robust Surveillance Use Policy Approved by Board - Board approval of a Surveillance Use Policy with robust civil rights, civil liberties, and security safeguards for all existing and new surveillance technology; and

4. Ongoing Oversight & Accountability - Proper oversight of surveillance technology use and accountability through annual reporting and public review by the Board.

As Nicole Ozer of the ACLU noted

"Law enforcement... has attempted secret drone purchases, lobbied to buy invasive cell phone trackers, and used social networking software to target Black, Asian-American, and Muslim protesters, so there certainly was a need for greater transparency and oversight."

When it passed she tweeted:

And got a response from a BART Board member:

OPWG, along with ACLU, is currently working with the BART Board of Directors on creating a similar ordinance that will apply to all BART-deployed surveillance technology. This includes Automatic License Plate Reading cameras (ALPRs) that BART Police had planned to deploy without notifying anyone - including the BART Board - until a new law passed in Sacramento required them to post public notice.

With the passage of the Santa Clara ordinance, OPWG plans to also renew its efforts to have similar legislation enacted by the Alameda County Board of Supervisors and the Oakland City Council. Other groups are pursuing the same objective in Palo Alto and Santa Cruz.

The first step in Oakland will be for Mayor Schaaf to formally nominate and for the City Council to confirm appointees to the Privacy Advisory Commission that was created in January, 2016. Most City Council members have made recommendations to the Mayor as to appointees, but formal nominations have not yet happened. The second step is to draft the surveillance ordinance - the law that created the commission specified that its first task would be to create a surveillance equipment ordinance for consideration by the Council.

Brian Hofer, member of OPWG and Chair of the Ad Hoc Privacy Committee created by the Oakland City Council to create a privacy policy for the Domain Awareness Center, thinking ahead to Oakland's effort-to-be said:

Tuesday's unanimous vote by the Santa Clara Board of Supervisors is another encouraging example of elected leaders being responsive to a community's desire for greater transparency into law enforcement use of surveillance equipment."

Come help up encourage our electeds to be responsive to the community. Come help us watch them watching all of us, and join us in stopping them wherever we can.

Tracy Rosenberg, OPWG member, testifying before the Santa Clara County Board

OPWG meets Wednesday, June 15th, at 6:30 PM at the OMNI Commons, 4799 Shattuck Ave., Oakland and usually at least once a month on Wednesdays.

The Introductory Paragraphs of Santa Clara County's
New Surveillance Equipment Ordinance.

The California Constitution provides that all people have an inalienable right to privacy, which is just as explicitly described in the California Constitution as the right to enjoy and defend life and liberty; the right to acquire, possess, and protect property; and the right to pursue and obtain safety and happiness.

State and federal courts, including both the California Supreme Court and the United States Supreme Court, have affirmed individuals' fundamental right to privacy, and the Board finds that protecting and safeguarding this right is a vital part of its duties. Acknowledging the significance of protecting the privacy of County citizens, the Board finds that surveillance technology may also be a valuable tool to bolster community safety and aid in the investigation and prosecution of crimes.

To balance the public's right to privacy with the need to promote and ensure community safety, the Board finds that any decision to use surveillance technology must be judiciously balanced with an assessment of the costs to the County and the protection of privacy, civil liberties and civil rights.

The Board finds that proper transparency, oversight, and accountability are fundamental to minimizing the risks posed by surveillance technologies. The Board finds it essential to have an informed public discussion before deploying surveillance technology, and that safeguards should be in place to address potential privacy, civil liberties, and civil rights issues before any new surveillance technology is deployed. The Board finds that if surveillance technology is acquired and deployed, there must be continued oversight and regular evaluation to ensure that safeguards are being followed and that the Board is assessing the surveillance technology's benefits and potential benefits in addition to its costs and potential costs.

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