by Anthony W. Accurso

Community control over police departments has become a hot topic since the militaristic response of police departments to protests over the killing of George Floyd and other citizens. Part of that militaristic response has involved new surveillance technologies like drones, facial recognition software, and cell-site simulators.

The decision to unleash new surveillance tech on a community is usually made by law enforcement agency executives, under the influence of shadowy corporate sales agents, and without any oversight. Many of these tools are expensive—representing a significant opportunity cost to the community—and have serious constitutional consequences including privacy invasion, deterrence of free speech, and wrongful arrests.

To encourage official community supervision of police-use of spy tech, a coalition started by the ACLU affiliates of California and includes the Electronic Frontier Foundation (“EFF”) has begun publishing, and urging community adoption of, model legislation that can be adapted to fit the oversight needs of various communities.

This model legislation, known as Community Control of Police Surveillance (“CCOPS”) has been implemented by 18 communities, many of which are in California and Massachusetts, but also includes some big cities like Seattle, Wash.; Nashville, Tenn.; and New York City. There are several features common to these implementations that can be included in a list of “best” features.

Strict Standard of Approval

To prevent the adoption of surveillance tech without oversight, agencies should be required to first seek approval from the local city council before implementing any new technology. The default answer should be a denial, unless the agency can convince the council—after community consultation—that the benefits of a tech’s proposed use and policies outweigh its costs, both economic and constitutional.

This will give BIPOC people (Black and/or Indigenous people of color) who are often most burdened by police use of spy tech) a voice and opportunity to prevent agency executives from enacting their oppressive science fiction fantasies, and it also prevents city councils from becoming rubber-stamps for agency wish-lists.

A Body of Experts

Corporate sales agents tout the effectiveness of their tools, often making claims not supported by rigorous testing, while completely ignoring the constitutional implications of the technology’s use. Agency executives and elected officials are often ill-equipped to properly scrutinize such claims or weigh them against the experiences of other communities that have tried these technologies.

Having a panel of experts to advise on a proposed tech and its use can better help make such decisions. San Francisco has a Committee on Information Technology comprised of various department heads and two members of the public, while Oakland has a Privacy Advisory Commission. Each group prioritizes different community concerns reflecting the uniqueness of each community’s desires and assisting the city council to balance the competing interests with proper scrutiny.

Public Notice

Even where experts provide assistance in making these decisions, a community’s concerns about new tech should be considered, and disparate voices should be heard. To this end, a lengthy notice and comment period is essential.

Davis, California, requires a 30-day period between publication of an impact report and proposed use policy, and the city council’s subsequent approval hearing(s). New York’s rules allow 45 days for the submission of comments.

These length periods allow motivated citizens to thoroughly research and consider a proposed technology, which results in better responsiveness by the city council before decisions are made.

Review of Current Technologies

It is critical that such legislation address current and prior police use of spy tech and require approval for continued use. Existing technology should be subject to at least the same level of scrutiny as new technology, and existing tech is likely to have a larger body of knowledge regarding costs, benefits, and limitations. Having a process requiring annual review and approval of tech currently in use prevents “grandfathering” and allows communities to address previous breaches of trust and misuse of tech.

Emergency Exceptions

Most implementing communities have chosen to allow police use of surveillance without prior approval only in an emergency situation. This usually requires timely notice to the city council and a limited use period, both of which are optimally a few days, not weeks or months.

Further, the definition of “emergency” should only cover immediate threats of death or bodily injury to prevent an agency from deploying tech against legitimate protests and gatherings under the guise of protecting property. Any data collected during these emergency use periods should also be limited in its retention duration and dissemination.

Enforcement

Ideally CCOPS legislation allows for any person to initiate a court action based on any violation of the process or approved use policy, and provides for reasonable attorney fees to be paid by the offending agency.

This allows for equitable access to enforcement mechanisms and incentivizes agencies against engaging in unofficial “ask first and apologize later” policies.

Wide-Spread Adoption

These best practices common to CCOPS legislation allow for the most proactive community control of police use of surveillance technologies. As more communities implement CCOPS laws, it will become less acceptable for agencies around the country to act unilaterally in ways that harm communities with surveillance tech.

Such community oversight can guide police more towards a positive relationship with communities they are charged to protect and serve. 

Source: Electronic Frontier Foundation, eff.org

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