Articles

Surveillance Tech Ordinance Adopted by Santa Clara County, Calif., Supervisors

The new rules require that agencies put in place public policies regarding the use of any surveillance technology before it is acquired, and issue annual reports on how the technologies have been used and what they discovered.

by Eric Kurhi, East Bay Times / June 8, 2016
A patrol car equipped with a roof-mounted camera that constantly photographs passing license plates. The compilation of such databases of motorists and use by law enforcement is under fire from privacy activists. (Rick Loomis/Los Angeles Times/MCT)

(TNS) -- Santa Clara County on Tuesday approved a pioneering spy-tech law that governs electronic surveillance, which advocates hailed as a "future-proof" model for others to follow.

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 new rules require that agencies put in place public policies regarding the use of any surveillance technology before it is acquired or activated, and issue annual reports on how the technologies have been used and what they discovered.

"Essentially, it establishes a commitment that before public funds are used, that there will be a transparent discussion, we'll have a policy of use before the acquisition and then we'll check in later to make sure we're following our own rules," said Supervisor Joe Simitian, who started the effort to create such a law. "But there is no outright prohibition of technology anywhere in this ordinance."

Simitian's push began in late 2014 amid percolating concerns surrounding police agencies getting new technology without telling the public, including a drone bought by San Jose police and a "Domain Awareness Center" information hub being created in Oakland. Within months, the issue struck close to home when the public learned that the Santa Clara County Sheriff's Office quietly got a $500,000 grant to purchase a "Stingray" cellphone tracking device, an effort that was disbanded when the county -- at Simitian's behest -- demanded to know more about how the technology works.

Electronic privacy advocates say what is different about Santa Clara County's approach to new technology is the breadth of the policy. Rather than going after a specific technology that could encroach on civil liberties, the ordinance requires that the board and the public be notified in advance about all potentially invasive innovations.

"Cities and counties shouldn't be deciding what they're going to use in secret, and there are so many ways they can collect information that's very personal," said Matt Cagle of the Northern California chapter of the American Civil Liberties Union. "And this one is built to be future-proof for technologies that aren't in existence yet that could violate our civil rights and invade our privacy or be used for racial profiling."

But that lack of specificity is precisely what worries county prosecutors and Sheriff Laurie Smith.

"It's very broad and onerous, and I hope it doesn't hurt our ability to get, utilize and share information with other law enforcement agencies," Smith told the board. "I understand the privacy concerns but most of what we do is criminal investigation, and we need the best tools to do the job."

She added that such a law might discourage other agencies from approaching Santa Clara County in joint operations, because of increased reporting requirements.

Assistant District Attorney Brian Welch said his office is concerned about the additional paperwork that the new policy will create and whether it will detract from the office's primary work.

"The DA will do everything to comply, but that will result in extensive report writing," he said. "And that is where we are concerned that it will have detrimental impact on our operation."

However, Simitian said he did not believe the requirements will be so taxing and that it will come back for review in six months to see if any such roadblocks are cropping up. That's something that Supervisor Mike Wasserman said was critical in gaining his vote. The new ordinance received unanimous support from the board.

"Striking a perfect balance can be tricky and I don't believe this is perfect, but it does a reasonable job," he said. "But it's very important that this is reviewed and looked upon to make sure we get it right -- it's too important to get wrong."

©2016 the Contra Costa Times (Walnut Creek, Calif.) Distributed by Tribune Content Agency, LLC.