HomeMy WebLinkAboutStaff Report 14870
City of Palo Alto (ID # 14870)
City Council Staff Report
Meeting Date: 10/24/2022 Report Type: Study Session
City of Palo Alto Page 1
Title: Study Session – Crime Mitigation Strategies through the Use of
Automated License Plate Recognition (ALPR) Technology
From: City Manager
Lead Department: Police
Recommendation
This is a study session and no action is needed from City Council.
Executive Summary
Automated License Plate Reader (ALPR) technology uses a combination of cameras and
computer software to scan the license plates of passing vehicles. The use of ALPR technology
provides several potential benefits, including crime deterrence, real-time alerts to police when
stolen or wanted vehicles enter an area, and enhanced investigative capabilities when a crime
has already occurred. The Police Department is exploring the installation of fixed ALPR cameras
at strategic locations in the City and is seeking the Council’s feedback and discussion so as to
inform staff’s review and potential recommendation for Council approval of implementation of
this technology. If the Department moves forward with deployment, it would complete a
procurement process and return to Council with a proposed contract, deployment plan, and
policy. This report outlines the uses and benefits of fixed ALPR technology, as well as
associated privacy considerations and applicable law.
Background
Automated License Plate Reader (ALPR) technology uses a combination of cameras and
computer software to scan the license plates of passing vehicles. The cameras, which can be
fixed (e.g., mounted on road signs or traffic lights), or mobile (i.e., mounted on a vehicle),
capture computer-readable images that allow law enforcement to compare plate numbers
against plates of known stolen vehicles or vehicles associated with individuals wanted on
criminal charges. When a match is found, a real-time alert is generated, notifying police of the
location where the image of the stolen or wanted vehicle was captured. ALPR data can also be
used by investigators after a crime has been committed to identify and locate associated
vehicles.
The Palo Alto Police Department has utilized a single mobile ALPR unit for over ten years, and
has recovered stolen vehicles and located wanted criminals as a result. The limitation of a single
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mobile ALPR is that alerts and data collection only occur when that vehicle is being operated by
an officer, which is limited by staffing, calls for service, and other duties. Data is also limited to
the route and distance traveled by the single patrol vehicle.
The use of ALPR technology is specifically regulated by California Civil Code §1798.90.5, et seq.
and is also subject to the City’s Surveillance Technology ordinance, PAMC §2.30.620, et seq.
Discussion
The addition of fixed ALPR cameras provides the City with a cost-effective force multiplier that
helps direct officers to where crimes are occurring and provides invaluable investigative leads
following a crime. Strategically placed fixed ALPR cameras provide greater geographic and
temporal coverage without the necessity of an officer or patrol vehicle. The use of fixed ALPR
technology has become widespread in the region and is being used by many local police
agencies to successfully locate stolen vehicles and solve other crimes where a vehicle has been
used. In recent years, ALPR technology has continued to evolve in terms of quality and
accuracy, while also becoming less cost-prohibitive.
Uses of ALPR
Recent years have seen regional increases in catalytic converter thefts, auto burglaries, vehicle
thefts and organized retail thefts. And, although still rare, the community has experienced
several brazen armed robberies. Those responsible for such crimes commonly use a vehicle to
travel to and flee from the crime scene. Moreover, such offenders often engage in a series of
criminal offenses involving multiple jurisdictions and victims, and commonly arrive in a stolen
vehicle, a vehicle bearing stolen plates, or a vehicle that law enforcement has previously
connected to verified criminal activity. Identifying stolen or wanted vehicles, via fixed ALPR, as
they enter a target area provides law enforcement an opportunity to intervene before
additional crimes are committed, and potentially apprehend wanted persons or recover stolen
property. ALPR data also provides investigators with an additional technique to identify, locate
and apprehend offenders once a crime has already occurred.
Logistics: A fixed ALPR system captures the date, time, location, license plate (state, partial,
paper, and no plate), and vehicle characteristics (make, model, type, and color) of passing
vehicles. The cameras function well under daylight and low light conditions and are capable of
capturing images of vehicles traveling at freeway speeds. ALPR cameras are positioned to
capture rear license plates only and are not designed to capture images of vehicle occupants or
utilize facial recognition technology. To derive maximum benefit with the fewest cameras
needed, cameras are typically placed at strategically selected locations based on several
factors: crime statistics, common vehicular ingress and egress points, and traffic volume.
Accounting for these factors provides the greatest likelihood of capturing images of suspects’
vehicles and their license plates.
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ALPR data is transmitted in an encrypted format, and stored remotely by a third-party vendor,
consistent with Criminal Justice Information System (CJIS) protocols. Departments utilizing an
ALPR system access the data via a web-based platform.
Neighboring Agency Usage: Other local communities are currently using fixed ALPR technology,
including Menlo Park, Atherton, Los Altos Hills, Saratoga, Campbell, San Jose, Los Gatos, Gilroy,
Morgan Hill, Milpitas, and Santa Clara, with several other local jurisdictions in the process of
implementing the technology. These jurisdictions anecdotally report that, since the
deployment of fixed ALPR, they have experienced a marked increase in the recovery of stolen
vehicles, as well as investigative success stories attributable to ALPR data.
Benefits of Usage: The use of ALPR technology provides several potential benefits, including
crime deterrence, real-time alerts to police when stolen or wanted vehicles enter an area, and
enhanced investigative capabilities when a crime has already occurred.
• Real-Time Alerts: When a real-time ALPR alert occurs, notifying police of the presence of a
wanted or stolen vehicle, officers can respond to the area to search for the vehicle. If
officers locate the vehicle, prior to making an enforcement stop, they visually confirm the
plate number and manually check it against law enforcement databases to confirm the
accuracy of the ALPR information and the legal justification for the stop.
• Deterrence: Even if officers are unable to locate and stop the vehicle in question, suspects
may see the police response and be deterred from further criminal activity. Indeed the
mere presence of the ALPR cameras, visibly mounted on public infrastructure and
potentially accompanied by signage, may act as a deterrent. Police personnel have reported
to staff that some criminals will intentionally target jurisdictions without ALPR technology to
increase their chances of successfully avoiding detection while committing crimes.
• Solve Crimes Already Committed: In addition to providing opportunities to prevent crime
and apprehend wanted persons via real-time alerts, ALPR data can be used by investigators
to solve crimes that have already occurred. Commonly, by the time a crime is reported to
police, the suspects have already fled the area, and it is the job of police to identify and
locate the suspects at a later time. While victims and witnesses can often provide
responding officers with a description of the vehicle used by a suspect, those descriptions
are frequently incomplete (e.g., a partial license plate number, vehicle type and color only)
or consist of a license plate number that corresponds to a stolen vehicle or a stolen plate.
Investigators can turn that imperfect or incomplete information into actionable leads by
querying the ALPR database.
For example, investigators can search the database for vehicles matching even an
incomplete description, which entered or exited the area of the crime, and use any
responsive images as the basis for further investigation. Or, in the case of suspects using a
stolen vehicle or a vehicle bearing stolen plates, investigators can search the database for
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other locations that vehicle has been observed and use that as a way to locate it or connect
it to other offenses.
• Regional Coordination: ALPR data sharing among local law enforcement partners allows
agencies to collaboratively investigate, identify and apprehend multi-jurisdictional
offenders, or those who commit crimes in one jurisdiction but reside in another. For
example, if a vehicle wanted in connection with a Palo Alto crime is frequently captured, via
ALPR, at a particular location in another city, that may provide Palo Alto investigators the
lead they need to locate the vehicle and apprehend the suspect. Or, in the case of organized
retail thieves, ALPR data sharing may allow investigators to connect multiple cases across
disparate jurisdictions, share evidence, and obtain the best prosecutorial outcomes.
• Expanded Searchable Data Set: Private entities (e.g., Home Owners Associations, shopping
centers, individual retailers) utilizing ALPR cameras can also elect to share their data with
local law enforcement, to include real-time alerts when wanted or stolen vehicles are
captured. The Department is informed that multiple such entities exist in Palo Alto,
including the City’s largest shopping center. This is a one-way share. A private entity that
shares its ALPR data with law enforcement does not gain access to law enforcement data in
return. The investigative usefulness of an ALPR system is greatly enhanced as its searchable
data set increases, whether from other law enforcement contributors or private entities.
One of the four priorities of the City Council this calendar year is Community Health and Safety
with an emphasis on crime (among others). Further, the 2030 Comprehensive Plan includes
policies S-1.6 and S-1.7, which supports a balanced approach of utilizing safety technology with
policy driven safeguards. The Department believes that the deployment of a fixed ALPR
system, with sound polices and training, would support crime prevention, criminal
apprehension, stolen vehicle recovery, and criminal investigation, by providing police with real-
time alerts when wanted or stolen vehicles enter targeted areas and by capturing footage of
fleeing suspect vehicles.
Privacy Considerations
Organizations such as the American Civil Liberties Union (ACLU), have expressed concerns
about the use of ALPR. Among its concerns are data access, storage, retention, sharing, and
reporting. If fixed ALPR were to be deployed in Palo Alto, the Department would implement
policies responsive, in whole or in part, to each of these concerns. For example, many local law
enforcement agencies retain ALPR data for 1 year, or even longer; the Department believes that
a retention period as short as 30 days would adequately support investigative needs. Only data
which has been identified as relevant to a specific criminal investigation would be retained
longer than that 30 day period.
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Internally, data would only be accessible to properly trained staff with a legitimate law
enforcement need, and all queries would be logged and subject to audit. When implementing
this technology, an organization has choices on its policies regarding sharing of data. Some
local law enforcement agencies share data with federal and out of state law enforcement
agencies. The Department would recommend restrictions on sharing of data collected by the
City to only share data with other local law enforcement agencies who adhere to similar
policies, and those queries would likewise be logged. Neither the Department, nor the third-
party vendor, would share the Department’s data with any non law enforcement entities. The
Department would make readily-accessible to the public its relevant policies as well as
information concerning the number of cameras deployed, the data retention period, and the
names of law enforcement agencies with whom it shares data.
Legal and Policy Considerations
California Civil Code § 1798.90.5, et seq. governs the collection and use of license plate
information by government agencies. It spells out the policies that an agency must implement
when collecting ALPR data. These policies, largely, address the same concerns set forth above
under Privacy Considerations. If fixed ALPR were to be deployed in Palo Alto, the Department
would ensure that its policies and training satisfied the requirements of this statute.
Palo Alto’s Surveillance Technology ordinance (No. 5420) modified PAMC § 2.30.620, et seq. to
establish criteria and procedures to protect personal privacy in the acquisition and use of
surveillance technology, and provide for ongoing monitoring and reporting. Fixed ALPR is
“surveillance technology” as defined by the ordinance. The ordinance requires Council
approval of the acquisition of new surveillance technology and of a Surveillance Use Policy
specific to each new approved technology. In approving new surveillance technology, the
Council must determine that its benefits outweigh the associated costs and concerns. The
ordinance sets forth specific elements that must be present in a Surveillance Use Policy,
including limitations on access, use, and retention, as well as a description of compliance
procedures. Prior to the acquisition of fixed ALPR for deployment in Palo Alto, the Department
would return for Council approval and ensure that its Surveillance Use policy and training
satisfy the requirements of the ordinance.
Resource Impact
Should the City move forward with the acquisition of fixed ALPR technology, the Department
would complete a procurement process in which costs and other factors are examined, and
return to the Council with a recommended vendor and proposed agreement.
A fixed ALPR system could be deployed either by leasing the equipment, with installation,
maintenance and replacement being the responsibility of the vendor, or via purchase of the
equipment, with installation, maintenance and replacement being the responsibility of the City.
In either case, there would be an additional annual subscription cost, associated with accessing
the ALPR database.
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Preliminary research, based on open source vendor information and publicly-available
information regarding the cost of ALPR programs in other local cities, suggests that a
deployment of fixed ALPR cameras in Palo Alto would come at a cost, in year one, of $75,000-
$200,000, and an on-going annual cost thereafter of approximately $50,000-$150,000. If the
City elected to purchase the cameras, it would expect to replace the equipment approximately
every 5 years, given the useful life of equipment exposed to the elements and advances in
technology.
Stakeholder Engagement
The Department has reviewed a variety of relevant materials prepared by the ACLU, including
its recommendations specific to the use of ALPR technology by law enforcement. In addition,
the Department proactively contacted local and regional ACLU representatives to request a
meeting to discuss the group’s concerns with ALPR technology. To date, the ACLU has not been
able to accommodate the Department’s request but the Department is hopeful this will occur in
the near future.
The Department has consulted with several local law enforcement agencies to gather best
practices for the acquisition, deployment, and oversight of a fixed ALPR program.
Attachments:
• Attachment A: Palo Alto Municipal Code Surveillance Ordinance
• Attachment B: ACLU Surveillance Guidelines
DocuSign Envelope ID: 424B60F0-0833-4F27-9BFF-5CDC3FF741AE
Ordinance No. 5450
Ordinance of the Council of the City of Palo Alto Adding Sections
2.30.G20-2.30.G90 to Title 2 of the Palo Alto Municipal Code to
Establish Criteria and Procedures to Protect Personal Privacy in the
Acquisition and Use of Surveillance Technology and Provide for Ongoing
Monitoring and Reporting
The Council of the City of Palo Alto does ORDAIN as follows:
SECTION 1. Findings and Recitals. The Council of the City of Palo Alto finds and declares as
follows:
To promote public trust and ensure protection of privacy, the Palo Alto City Council desires
to establish a general policy governing consideration, acquisition and use of technologies by the
City, including its contractors and partners, that gather information about specific individuals or
groups of individuals;
The City also recognizes the value of and wishes to foster Smart City initiatives that enhance
City programs and services to citizens and visitors through the use of technology;
Accordingly, the City adopts the following ordinance to increase transparency, oversight and
accountability in the acquisition and deployment of technologies that collect and retain
personally identifiable information of persons not accused of unlawful activity.
SECTION 2. PART GA-SURVEILLANCE AND PRIVACY PROTECTIONS, Sections 2.30.G20-
2.30.G90, is added to Chapter 2.30 [Contracts and Purchasing Procedures], of Title 2
[Administrative Code] of the Palo Alto Municipal Code to read as follows:
2.30.620 Title.
This Part GA shall be known as the Surveillance and Privacy Protection Ordinance.
2.30.630 Council Approval Required for Contracts, Agreements, Grant Applications and
Donations Involving Surveillance Technology.
The Council shall approve each of the following:
(a) Applications for grants, acceptance of state or federal funds, or acceptance of in-kind or
other donations of Surveillance Technology;
(b) Notwithstanding any delegation of authority to award contracts in this Chapter 2.30,
contracts of any type and any amount that include acquisition of new Surveillance Technology;
(c) Use of Council-approved Surveillance Technology for a purpose, in a manner, or in a
location outside the scope of prior Council approval; or
180830 th 0140191
DocuSign Envelope ID: 424B60FO-D833-4F27-9BFF-5CDC3FF741AE
(d) Agreements with a non-City entity to acquire, share, or otherwise use Surveillance
Technology or the information it provides.
2.30.640 Council Approval of Surveillance Use Policy.
The Council shall approve a Surveillance Use Policy addressing each activity that it approves
that is listed in Section 2.30.630. If no current Surveillance Use Policy covers an approved
activity, Council shall adopt a new policy or amend an existing policy to address the new
activity.
2.30.650 Information Required.
Unless it is not reasonably possible or feasible to do so, before Council approves a new
activity listed in Section 2.30.630, the City should make available to the public a Surveillance
Evaluation and a proposed Surveillance Use Policy for the proposed activity.
2.30.660 Determination by Council that Benefits Outweigh Costs and Concerns.
Before approving any new activity listed in Section 2.30.630, the Council shall assess
whether the benefits of the Surveillance Technology outweigh its costs. The Council should
consider all relevant factors, including financial and operational impacts, enhancements to
services and programs, and impacts on privacy, civil liberties, and civil rights.
2.30.670 Oversight Following Council Approval.
Beginning after the close of fiscal year 2019 and annually thereafter, the City shall produce
and make available to the public an Annual Surveillance Report. The Annual Surveillance Report
should be noticed as an informational report to the Council. The Council may calendar the
Annual Surveillance Report or any specific technology included in the report for further
discussion or action, and may direct that (a) use of the Surveillance Technology be modified or
ended; (b) the Surveillance Use Policy be modified; or (c) other steps be taken to address
Council and community concerns.
2.30.680 Definitions.
The following definitions apply to this Section:
(a) "Annual Surveillance Report" means a written report, submitted after the close of the
fiscal year and that includes the following information with respect to the prior fiscal year:
(1) A description of how each Council-approved Surveillance Technology was used,
including whether it captured images, sound, or information regarding members of
the public who are not suspected of engaging in unlawful conduct;
(2) Whether and how often data acquired through the use of the Surveillance
Technology was shared with outside entities, the name of any recipient entity, the
types of data disclosed, and the reason for the disclosure;
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DocuSign Envelope ID: 424B60FO-D833-4F27-9BFF-5CDC3FF741AE
(3) A summary of any community complaints or concerns about the surveillance
technology;
(4) Non-privileged and non-confidential information regarding the results of any
internal audits, information about violations of the Surveillance Use Policy, and any
actions taken in response;
(S) Whether the Surveillance Technology has been effective at achieving its identified
purpose;
(6) The number and nature of Public Records Act requests relating to the Surveillance
Technology;
(7) Annual costs for the Surveillance Technology and for compliance with this
Surveillance and Privacy Protection Ordinance, including personnel and other
ongoing costs, and sources of funding; and
(8) Other relevant information as determined by the City Manager.
The Annual Surveillance Report will not include information that may compromise the
integrity or limit the effectiveness of a law enforcement investigation.
(b) "Surveillance Evaluation" means written information, including as part of a staff report,
including:
(1) A description of the Surveillance Technology, including how it works and what
information it captures;
(2) Information on the proposed purpose, use and benefits of the Surveillance
Technology;
(3) The location or locations where the Surveillance Technology may be used;
(4) Existing federal, state and local laws and regulations applicable to the Surveillance
Technology and the information it captures; the potential impacts on civil liberties
and privacy; and proposals to mitigate and manage any impacts;
(5) The costs for the Surveillance Technology, including acquisition, maintenance,
personnel and other costs, and current or potential sources of funding.
(c) "Surveillance Technology" means any device or system primarily designed and actually
used or intended to be used to collect and retain audio, electronic, visual, location, or similar
information constituting personally identifiable information associated with any specific
individual or group of specific individuals, for the purpose of tracking, monitoring or analysis
associated with that individual or group of individuals. Examples of Surveillance Technology
include drones with cameras or monitoring capabilities, automated license plate readers,
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DocuSign Envelope ID: 424860FO-D833-4F27-9BFF-5CDC3FF741AE
closed-circuit cameras/televisions, cell-site simulators, biometrics-identification technology and
facial-recognition technology. For the purposes of this Ordinance, "Surveillance Technology"
does not include:
(1) Any technology that collects information exclusively on or regarding City employees
or contractors;
(2) Standard word-processing software; publicly available databases; and standard
message tools and equipment, such as voicemail, email, and text message tools;
(3) Information security tools such as web-filtering, virus detection software;
(4) Audio and visual recording equipment used exclusively at open and public events,
or with the consent of members of the public;
(5) Medical devices and equipment used to diagnose, treat, or prevent disease or
injury.
(d) "Surveillance Use Policy" means a stand-alone policy or a section in a comprehensive
policy that is approved by Council and contains:
(1) The intended purpose of the Surveillance Technology.
(2) Uses that are authorized, any conditions on uses, and uses that are prohibited.
(3) The information that can be collected by the Surveillance Technology.
(4) The safeguards that protect information from unauthorized access, including, but
not limited to, encryption, access-control, and access-oversight mechanisms.
(5) The time period for which information collected by the Surveillance Technology will
be routinely retained; the process by which the information is regularly deleted
after that period lapses; and conditions and procedures for retaining information
beyond that period.
(6) If and how non-City entities can access or use the information, including conditions
and rationales for sharing information, and any obligations imposed on the
recipient of the information.
(7) A description of compliance procedures, including functions and roles of City
officials, internal recordkeeping, measures to monitor for errors or misuse, and
corrective procedures that may apply.
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Certificate Of Completion
Envelope Id: 424B60FOD8334F279BFF5CDC3FF741AE
Subject: Please DocuSign: ORD 5450 surveillance technology ordinance.docx
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Molly Stump
molly.stump@cityofpaloalto.org
City Attorney
City of Palo Alto
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Ed Shlkada
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Assistant City Manager
City of Palo Alto
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Making
SMart
DeciSionS
about
Surveillance
A Guide for Community
trAnspArenCy,
ACCountAbility
& oversiGht the ACLU
of CALiforniA
APriL 2016
urveillance is on the rise in our communities, but basic transparency, oversight, and
accountability remain the exception, not the rule. Police are spending billions of dollars on very
sophisticated and invasive surveillance technology from license plate readers and cell phone
trackers to facial recognition and drones. Too many of these programs are moving forward without
public conversation, careful consideration of the costs and benefits, or adequate policies in place to
prevent misuse and protect rights. As a result, surveillance may enable high-tech profiling,
perpetuate systems of abusive policing, and undermine trust in law enforcement, particularly in
communities of color where police misconduct has been rampant and community relationships have
been strained. It’s time for change.
Communities must be equal partners in any decision about the use of surveillance technology. They
need to know when and why surveillance is being considered, what it is intended to do, and what it
will really cost — both in dollars and in individual rights. They need to be certain that any proposal
includes strong mechanisms for transparency, accountability, and oversight. Otherwise, public trust
can be easily damaged, and communities can end up saddled with systems that are too invasive, very
expensive, and much less effective at accomplishing community safety goals than initially imagined.
This guide provides a step-by-step framework to approach surveillance proposals, properly evaluate
their true costs, and develop policies that provide transparency, oversight, and accountability. Its
checklist walks community members, policymakers, and law enforcement officials through essential
questions to ask and answer about surveillance proposals, and includes dozens of case studies
highlighting smart approaches and missteps to avoid. The guide concludes with model language for
policymakers to adopt to make sure the right process is used every time a surveillance proposal is
considered.
We hope you will find this document and its supporting materials (available online at
aclunc.org/smartaboutsurveillance) useful in ensuring your community is making informed
decisions about surveillance.
Nicole A. Ozer Peter Bibring
Technology and Civil Liberties Policy Director Police Practices Director
ACLU of California ACLU of California
S
1
ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE
Authors: Chris Conley, Matt Cagle, Peter Bibring, Jessica Farris,
Linda Lye, Mitra Ebadolahi, and Nicole Ozer, ACLU of California
Contributing Writers: Addison Litton and Thomas Mann Miller
Design & Layout: Gigi Pandian & Daniela Bernstein
This publication was underwritten with support from the ACLU Foundation
and the ACLU’s generous members and donors.
PUBLISHED BY THE ACLU OF CALIFORNIA
SECOND EDITION — APRIL 2016
CONTENTS
Technology Overview ............................................................................................................................................. 2
Key Questions to Answer Before Moving Forward with Any Surveillance Proposal .......................... 3
Why It Matters: The Costs and Consequences of Surveillance ................................................................. 4
Surveillance Impacts Civil Rights and Community Trust ................................................................................ 4
Surveillance Carries Both Immediate and Ongoing Financial Costs ............................................................. 7
Surveillance Must Take Evolving Privacy Law into Account ......................................................................... 8
Necessary Steps when Considering a Surveillance Proposal ................................................................... 11
Collectively Evaluate the Effectiveness, Costs and Alternatives Before Making Decisions
about Surveillance ................................................................................................................................................. 11
Establish a Surveillance Use Policy to Mitigate Harms and Protect Rights ................................................ 17
Ensure Accountability by Enforcing Policies and Encouraging Ongoing Public Engagement .............. 21
Conclusion................................................................................................................................................................ 24
Appendix: Model Surveillance & Community Safety Ordinance ............................................................ 25
Endnotes ................................................................................................................................................................... 29
2
MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
3
ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE
4
MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
Why It Matters: The Costs and Consequences of Surveillance
Surveillance technology is often proposed as an efficient public safety tool. But too often, proposals ignore
not only the true financial costs of surveillance technology but also their potential to infringe on civil rights
and undermine public trust and effective policing. Communities should identify and assess all of the harms
and costs of surveillance as early in the consideration process as possible in order to determine whether
moving forward with a surveillance technology is really the right choice.
A. SURVEILLANCE IMPACTS CIVIL RIGHTS AND COMMUNITY TRUST
The community at large can pay a heavy price if
surveillance technology is acquired and deployed
without evaluating its impact on civil rights and its
potential for misuse. Surveillance can easily intrude
upon the individual rights of residents and visitors,
perpetuate discriminatory policing, or chill freedom of
expression, association, and religion — freedoms that
public officials are sworn to protect.1 As a result,
surveillance can erode trust in law enforcement, making
it harder for officers and community members to work
together to keep the community safe.2
1. SURVEILLANCE CAN INTRUDE UPON COMMUNITY
MEMBERS’ RIGHTS
The greatest cost of surveillance technology may not be financial but personal: the invasion and infringement
of civil rights. Various types of surveillance technology are capable of capturing and storing vast amounts of
information about community members and visitors: the political rallies and religious services they attend, the
health services they use, the romantic partners they have, and more. Just the perceived threat of surveillance
has the potential to harm community members by discouraging individuals from participating in political
advocacy, opposing police misconduct, evaluating reproductive choices, exploring their sexuality, and
engaging in other activities that are clearly protected by the federal and California constitutions. And, too
often, this perception is grounded in reality, as demonstrated by Fresno’s use of social media monitoring
software that flagged “#blacklivesmatter” as an indicator of criminal activity.34
There are many examples of the misuse of surveillance to target individuals based on their race, ethnicity,
associations, or religious or political activities. Police in Santa Clara used a GPS device to track a student due
to his father’s association with the local Muslim Community Association.5 Police in Michigan sought
“information on all the cell phones that were congregating in an area where a labor-union protest was
expected.”6 The NSA specifically monitored the email of several prominent Muslim-Americans with no
evidence whatsoever of wrongdoing.7 In Britain, where video surveillance is pervasive, a European Parliament
“[S]urveillance programs follow a long
history of law enforcement targeting African
American and other minority groups…. We
need … a future in the city where our police
department and other public institutions
have true community oversight and
accountability.”
The Rev. B.T. Lewis and Taymah Jahsi,
Organizers, Faith in Community in Fresno2
Civil Rights Principles in an Era of Big Data, signed by fourteen of the nation’s leading civil and human
rights groups, sounds the alarm on how surveillance technology often disproportionately affects
communities of color and religious and ethnic minorities. It calls for technology to be “designed and
used in ways that respect the values of equal opportunity and equal justice” and urges users to “stop
high‐tech profiling” and “preserve constitutional principles.” The document further calls for search
warrants and other independent oversight of law enforcement and “clear limitations and robust
audit mechanisms to make sure that if these tools are used it is in a responsible and equitable way.”4
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study showed that “the young, the male and the black were systematically and disproportionately targeted not
because of their involvement in crime or disorder, but for ‘no obvious reason.’”8
Surveillance programs that do not focus on individual targets can be particularly problematic. Tracking entire
groups or communities extends “guilt by association” to those who have done nothing wrong, discourages
participation in local activities, and alienates community members. And once members of the group are
tainted with such suspicion, it becomes easy to justify prying into their private lives, or even threatening them
with further consequences if they do not cooperate with additional surveillance efforts.9 101112
SURVEILLANCE OF POLITICAL AND SOCIAL ACTIVISTS
The government has a long and troubled history of abusing surveillance powers to target political and
social activists. From the “Red Squads” of the early 20th century to the FBI’s efforts to infiltrate and
discredit antiwar and civil rights activists in the 1960s, to recent surveillance of the Black Lives Matter
movement:
The Department of Homeland Security monitored the social media accounts of Black Lives
Matter members and collected details about the locations of members and plans for peaceful
protests in Ferguson, Baltimore, and New York City. This led many to question why the DHS —
formed to combat terrorism — was surveilling members of a peaceful domestic social justice
movement.10
Police in Fresno, California, secretly acquired and tested multiple social media surveillance
tools that encouraged surveillance of hashtags like #BlackLivesMatter, #dontshoot, and
#wewantjustice and assigned individuals a “threat level.” This led to nationwide negative press
attention and calls for reform from community members, all of which forced the police chief
to issue a public apology.11
Authorities in the Oregon Department of Justice came under fire when it was revealed that a
senior investigator had used software to conduct surveillance of hashtags including
#BlackLivesMatter, which returned results for civil rights advocates, including the president of
the Urban League of Portland. The story triggered a public apology by Oregon’s Attorney
General and led to an internal investigation.12
Intelligence reforms born from lawsuits and congressional inquiries have led many law enforcement
agencies to bar the collection of information about political activism and other First Amendment‐
protected activities without a justifiable suspicion of criminal activity. But surveillance of Black Lives
Matter demonstrates a need for similar restrictions on the use of surveillance technology today to
ensure that it is not used to chill or undermine political and social activism.
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MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
“Dragnet” surveillance often targets communities of color:
for example, in Oakland, the police have
disproportionately used license plate readers in African-
American and Latino neighborhoods.13 In Compton,
police flew a plane rigged with high-powered surveillance
cameras overhead for weeks without the public’s
knowledge or consent.14 Because it involves collecting vast
amounts of information, dragnet surveillance also creates
the potential for all sorts of abuse, from NSA analysts
tracking romantic partners15 to a Washington, D.C. police
lieutenant blackmailing patrons of a gay bar.1617 18
Surveillance carries privacy and free speech threats even if it is conducted solely in public places. This is
particularly true when surveillance information is aggregated to build a robust data profile that can “reveal
much more in combination than any isolated record.”19
As Supreme Court Justice Sonia Sotomayor has noted,
“a precise, comprehensive record of a person’s public
movements … reflects a wealth of detail about her
familial, political, professional, religious, and sexual
associations.” In addition, “[a]wareness that the
Government may be watching chills associational and
expressive freedoms.”20
2. SURVEILLANCE CAN ERODE TRUST IN LAW ENFORCEMENT
When law enforcement fails to fully engage with community members about the impact of surveillance — or,
worse, entirely skirts the democratic process by acquiring and deploying surveillance technology without
public discussion at all — it erodes trust even further, making it even harder for law enforcement officers to
work with the community to solve crimes and protect public safety.
In the years after the September 11th attacks, the New York Police Department created a secretive
intelligence wing that infiltrated Muslim neighborhoods with undercover officers, where they monitored the
daily lives of and compiled dossiers about Muslim-Americans engaging in constitutionally protected activities
in cafes, bookstores, and private residences with no
evidence of illegal activity.21 22These activities gravely
harmed the community’s trust in law enforcement and led
to a multi-year lawsuit and settlement that barred the
NYPD from conducting investigations on the basis of race,
religion, or ethnicity, and mandated implementation of a
series of reforms designed to deter warrantless surveillance.
In Compton, news broke about an aerial surveillance
program that watched the whole community and was
intentionally kept “hush-hush” by the Sheriff’s Department
to deter civil rights complaints. Both citizens and lawmakers were up in arms that they had been kept in the
dark about such intrusive surveillance. Angry community members rightly questioned, "Why are we the
target? As citizens we deserve [to know]. We are not all criminals.... It's an invasion of privacy.” The Mayor
called for a “citizen private protection policy,” ensuring that the community would be notified before any
new surveillance equipment was deployed or used.23
“One of the most alarming parts of that
history has been the ways that surveillance
has been misused against Black people
who have been advocating for their
justice. It’s been used to discredit, abuse,
and incarcerate.”
Opal Tometi, Black Lives Matter co‐
founder17
"Those of us from marginalized communities
grew up in environments very much shaped
by surveillance, which has been utilized to
ramp up the criminal justice system and
increase deportations….”
Steven Renderos, Center for Media Justice18
“The effects of surveillance on New York
Muslim communities have been
devastating.… Community members’ ties
to local police precincts have
deteriorated due to distrust and fear.”
Hina Shamsi, ACLU National Security
Project Director22
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B. SURVEILLANCE CARRIES BOTH IMMEDIATE AND ONGOING FINANCIAL COSTS
In addition to the costs to civil rights and civil liberties, the fiscal impact of surveillance can be extensive.
Modifying current infrastructure, operating and maintaining systems, and training staff can consume limited
time and money, even if federal or state grants fund initial costs. Surveillance technologies may also fail or be
misused, resulting in costly lawsuits. To calculate the full financial cost of surveillance technology,
communities must look beyond the initial sticker price. 24
1. SURVEILLANCE REQUIRES INFRASTRUCTURE, STAFFING, TRAINING, AND MAINTENANCE
The hidden costs of infrastructure, training and staffing, operations and maintenance, and the potential for
budget overruns, can dwarf the cost of acquiring surveillance technology in the first place. Communities that
have failed to accurately estimate the full financial cost of a surveillance system have dealt with massive cost
overruns and programs that failed to accomplish their stated purpose. For example, Philadelphia planned to
spend $651,672 for a video surveillance program featuring 216
cameras. Instead, it spent $13.9 million on the project and
wound up with only 102 functional cameras after a year, a
result the city controller described as “exceedingly alarming,
and outright excessive — especially when $13.9 million is
equivalent to the cost of putting 200 new police recruits on our
streets.”25 To avoid a similar incident in your community, it is
essential to identify all of the costs required to install, use, and
maintain surveillance technology before making a decision
about whether to do so.
2. SURVEILLANCE CAN CREATE FINANCIAL RISKS INCLUDING LITIGATION AND DATA BREACH
Surveillance programs that fail to include proper safeguards to prevent errors or misuse and protect freedom
of expression, association, and religion, or that inadequately enforce such safeguards, can lead to expensive
litigation that diverts resources from other public services. For example, Muslim residents in Orange County
filed a discrimination lawsuit when it was revealed that state agents were sending informants into mosques to
collect information on the identities and activities of
worshippers.26 The NYPD paid $2 million in attorney fees for
spying on New York’s Muslim communities.27 Even technical
glitches can create the potential for costly lawsuits and other
expenses: the City of San Francisco was embroiled in a multi-
year civil rights lawsuit after wrongly pulling over, handcuffing,
and holding at gunpoint an innocent woman due to an error by
its ALPR system.28 29
The collection of surveillance data also creates the risk of data
breaches that can incur significant public costs as well as endanger residents’ privacy and economic security.
Even following best practices (which itself can entail significant expense) is not enough to prevent every
breach. California law requires that a local agency notify residents about a security breach.30 And the fiscal
costs of a breach of sensitive surveillance data could be very high: a 2015 report found that companies spent
an average of $3.7 million to resolve a data security breach.31 The more information your community collects
and retains, the greater the risk and potential cost of a breach.
“When you’re considering a new
technology, it’s important to evaluate
not only the upfront costs but also the
costs of maintenance and upgrades
that will occur down the road.”
Captain Michael Grinstead, Newport
News (VA) Police Department24
“After public backlash about Oakland’s
proposed Domain Awareness Center,
we really had to regroup and think about
how we needed to proceed.”
Renee Domingo, former Oakland
Emergency Services Coordinator29
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MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
3. LACK OF PROPER PROCESS CAN WASTE TIME AND MONEY
Failing to thoroughly discuss surveillance proposals and listen
to community concerns early in the process can result in
massive backlash and wasted time and funds when plans are
suspended or ultimately cancelled. Oakland was forced to scrap
most of the planning for its ill-fated Domain Awareness Center
and scale the project back considerably after community
members protested the misleading mission statement and lack
of transparency for the project.32 In Santa Clara County, a
secretive process to purchase a Stingray cell surveillance device
was derailed by the County Executive after it sidestepped
necessary community debate and county oversight.33 34
Community members grounded San Jose’s secret drone
purchase and the police were forced to apologize for the lack of transparency and community input.35
Engaging with the community before taking steps to go forward with a surveillance proposal is essential to
avoiding similar mistakes that spark widepsread community outrage and waste time and resources.
C. SURVEILLANCE MUST TAKE EVOLVING PRIVACY LAW INTO ACCOUNT
The use of surveillance technology is facing increased scrutiny and limits. Courts and lawmakers at the state
and federal level, driven by increased public concern about privacy, are acting to protect individual rights and
civil liberties. As a result, your community needs to consider both the existing laws and the potential for legal
change, including the policy and individual rights concerns that are driving that change, when evaluating a
surveillance proposal. 36
In recent years, federal courts have repeatedly reinforced legal protections for individual rights in the context
of today’s technology. In 2015, the U.S. Supreme Court unanimously told law enforcement to “get a warrant”
to search an arrestee’s cell phone. In another unanimous decision, the Court also ruled a warrant is required
to use a GPS beeper to track a suspect’s vehicle, with a
majority of the Court suggesting that using technology to
track an individual’s location — even in public — over an
extended period of time triggers constitutional scrutiny.37
Finally, multiple federal courts declared the NSA’s
warrantless collection of telephone metadata unlawful, with
one criticizing its “almost Orwellian” scope.38 Surveillance
programs that fail to account for this trend may well be
held unconstitutional, and criminal investigations based on
evidence from those programs could be jeopardized.
The California Constitution is even more protective of community members’ privacy, including in public
spaces. The state right to privacy expressly gives Californians a legal and enforceable “right to be left alone”
that protects interests in privacy beyond the home.39 The California Supreme Court has held that covertly
“infiltrating” and monitoring the activities of students and professors at classes and public meetings without
any indication of criminal activity violated the California Constitution,40 as did warrantless aerial surveillance
of a resident’s backyard.41 Californians’ right to free expression also extends outside of the home, even to
privately owned areas like shopping centers.42
Numerous laws and regulations also place limits or requirements on the use of surveillance technology. The
federal Wiretap Act and its California counterpart limit the use of surveillance technology capable of
“The fact that technology now allows an
individual to carry such information in
his hand does not make the information
any less worthy of the protection for
which the Founders fought.”
Riley v. California, U.S. Supreme Court36
“SJPD should have done a better job
of communicating the purpose and
acquisition of the UAS (Unmanned
Aerial System) device to our
community….The community should
have the opportunity to provide
feedback, ask questions, and express
their concerns before we move
forward with this project.”
San Jose Police Department34
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intercepting the contents of live communications. And in 2015, California lawmakers enacted three separate
laws that specifically address issues related to surveillance technology:
Collection of Electronic Information: The California Electronic Communications Privacy Act
requires a search warrant when collecting electronic information with surveillance technology like cell
phone tracking technology. It also requires a warrant for searching electronic devices or compelling
email, location information, or other metadata from service providers. The law creates additional
procedural safeguards, including notice to the suspect, and allows for suppression or court-mandated
deletion of information obtained or retained in violation of the law.43
Automated License Plate Readers: Newly enacted California law requires an opportunity for
public comment, a written, publicly available use policy that is “consistent with respect for an
individual’s privacy and civil liberties,” and reasonable security safeguards for any use of automated
license plate readers. Individuals can sue for harms due to a security breach or other unauthorized
disclosures.44
Cell Phone Tracking Technology: Newly enacted California law requires public process, local
legislative approval for all agencies other than sheriffs, a public use and privacy policy that is
“consistent with respect for an individual’s privacy and civil liberties,” and the disclosure of
agreements with other agencies concerning the use of IMSI catchers and other cell phone tracking
technology. The law also allows an individual to sue an agency for violating these provisions.45
There have also been bipartisan legal changes at both the federal and state level to rein in surveillance. In
2016, federal lawmakers adopted reforms related to NSA spying.46 Eighteen other states have enacted laws
restricting law enforcement access to location information,47 and a majority of states have introduced
legislation aimed at curbing the use of drones for surveillance purposes.4849
These state and federal changes are driven by a clear shift in public attitudes towards surveillance. Community
members want and expect reform at both the state and local level to increase transparency, accountability,
and oversight for surveillance technology. Two thirds of California voters want to see local elected officials
like City Councilmembers or County Supervisors approve new surveillance technologies before they can be
used. Similarly, a strong majority of voters want to see both local (65 percent) and state (64 percent) policies
SURVEY OF LIKELY 2016 CALIFORNIA VOTERS FINDS STRONG SUPPORT FOR REFORMS
TO SURVEILLANCE TECHNOLOGY USE BY LAW ENFORCEMENT
Likely 2016 voters polled in a California statewide survey strongly favor local and state level reforms of
law enforcement surveillance technology practices.49 A summary of key findings from the survey:
Reform Proposal Support
Require the local City Council or Board of Supervisors to vote to approve
new surveillance technology before it is used by local police. 67%
Develop and enforce local policies to set limits on surveillance technology
used by police. 65%
Develop and enforce statewide policies to set limits on surveillance
technology used by police. 64%
Require law enforcement agencies to publicly report how often they are
using surveillance. 62%
Provide public notification prior to local police buying new technology for
surveillance. 58%
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MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
developed and enforced that set limits on police use of surveillance technology. Voters also want to see steps
taken to require public reporting from law enforcement agencies regarding the frequency of use of
surveillance technologies (62 percent) as well as public notification before the purchase of any new
surveillance technologies (58 percent).50 51
All of these factors have led many communities to move
forward with local ordinances that ensure transparency,
accountability, and oversight for all surveillance
technologies.52 Your community should follow their lead
and thoroughly evaluate any surveillance proposal in
order to protect the rights of your community members,
identify hidden costs and financial risks, and ensure that
you comply with existing laws and are consistent with
increasing public concerns about privacy.
“With a surveillance equipment ordinance,
any of the existing equipment that Oakland
might already have or any that is soon to
come out will have to go through the
vetting process.”
Brian Hofer, Chair, Oakland Domain
Awareness Center Privacy Committee51
ENACT A SURVEILLANCE & COMMUNITY SAFETY ORDINANCE
TO MAKE SURE THE RIGHT PROCESS IS FOLLOWED EVERY TIME
Passing the Surveillance & Community Safety Ordinance included in the Appendix to this guide will
help your community avoid problems down the line by following the right process every time. It
ensures that there is community analysis of surveillance technology whenever it is considered, that
local lawmakers approve each step, and that any surveillance program that is approved includes both
a Surveillance Use Policy that safeguards individual rights and transparency and accountability
mechanisms to ensure that the Policy is followed.
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Necessary Steps when Considering a Surveillance Proposal
Surveillance can be misused in ways that harm community members, undermine public safety goals, and
saddle taxpayers with unnecessary costs. That’s why it is essential to publicly and thoroughly evaluate
surveillance proposals. The following section will help your community — including diverse residents, public
officials, and law enforcement — work together to determine whether surveillance really makes sense and put
in place robust rules to ensure proper use, oversight, and accountability if your community decides to move
forward with a surveillance proposal. 53
A. COLLECTIVELY EVALUATE THE EFFECTIVENESS, COSTS AND ALTERNATIVES BEFORE
MAKING DECISIONS ABOUT SURVEILLANCE
Surveillance should only be a means to an end, never an end in itself. That means that your community
should have an actual purpose in mind or problem that needs to be addressed before even considering
surveillance technology. Once you have that, you can collectively evaluate whether surveillance is likely to
effectively accomplish your goals, as well as estimate the costs to both
your community’s budget and to individual rights.
1. DECIDE AS A COMMUNITY: INVOLVE THE ENTIRE COMMUNITY
FROM THE START
The best way to consider whether surveillance is the right choice and
to avoid costly mistakes is to engage the entire community —
including law enforcement, local lawmakers, and members of the
public — in a thorough discussion about any surveillance proposal.
Different segments of your community are likely to bring valuable perspectives to the process of evaluating
whether to acquire and use surveillance technology. And the time to engage with your community is at the
very beginning of the process, before any funding is sought, technology is acquired, or system is used.54
Several cities considering proposals to introduce or
expand surveillance have found it useful to actively
engage community members through working
groups and ad-hoc committees to shape policy and
provide oversight. The Redlands Police
Department convened a Citizens’ Privacy Council,
open to any city resident of the city, to provide
advice on surveillance-camera policies and oversee
police use of the cameras.55 Richmond formed an56
ad-hoc committee to evaluate policies for its video
“The public debate that the surveillance ordinance
will require on new technologies and their uses will
be beneficial for everyone, including city officials,
to help them learn more about how these
programs work and what they mean to the public.”
Joe DeVries, Oakland Assistant to the City
Administrator56
Fewer than 15 percent of
California communities publicly
debated surveillance programs
before moving forward. (ACLU
2014)54
The Department of Homeland Security (DHS) Privacy Office and Office for Civil Rights and Civil Liberties
issued CCTV: Developing Privacy Best Practices, a report that encourages government agencies to build
privacy, civil rights, and civil liberties considerations into the design, acquisition, and operations of
video surveillance systems. An appendix highlights the need to follow the Fair Information Practice
Principles of Transparency, Individual Participation, Purpose Specification, Data Minimization, Use
Limitation, Data Quality and Integrity, Security, Accountability, and Auditing.53
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MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
surveillance program.57 And in 2014, following community
backlash and the vote not to expand Oakland’s Domain
Awareness Center, the City Council created a Privacy and Data
Retention Ad Hoc Advisory Committee comprised of diverse
community members to create safeguards to protect privacy58
rights and prevent the misuse of data for a scaled-back system to
be used at the Port of Oakland.59 Oakland now has a formal
Privacy Commission, which will provide advice to the City of Oakland on best practices to protect privacy
rights in connection with the City's purchase and use of surveillance equipment and other technology that
collects or stores data.60
Is the community engaged in an informed debate about any surveillance proposal?
It is never too early for a public debate about a surveillance proposal. Community members should know
what kind of surveillance is being considered, what it is intended to do and how it will affect them at the
earliest stages of the process, when their input can bring out important information, highlight community
concerns, and help avoid unforeseen problems and community backlash. 61
The public should be given effective notice that surveillance is being considered. Effective notice means
more than a line item in a public meeting agenda. Law enforcement should proactively contact
community groups, including those representing ethnic and religious communities, and local media to
increase public awareness early in the process and engage the entire community with the issue. 62
“Technology can only serve
democracy to the degree that it is
democratized.”
Malkia Cyril, Director, Center for
Media Justice58
CASE STUDY: SANTA CLARA COUNTY CANCELS STINGRAY BUY DUE TO
TRANSPARENCY CONCERNS
In 2015, the Santa Clara County Executive rejected the Sheriff’s proposal to purchase a Stingray
after the Board of Supervisors questioned the expense and secrecy of the project. The Board
questioned how they could be asked to spend more than $500,000 of taxpayer money to approve
a purchase that was shrouded in secrecy even from the Board itself. The County Executive
ultimately rejected the purchase because the company providing the Stingray refused to “agree to
even the most basic criteria we have in terms of being responsive to public records requests… We
had to do what we thought was right.”61
CASE STUDY: OAKLAND’S “DOMAIN AWARENESS CENTER” FORCED TO SCALE BACK
AFTER KEEPING COMMUNITY IN THE DARK
In 2013, the City of Oakland tried to expand its “Domain Awareness Center,” originally focused on
the Port of Oakland, into a citywide surveillance network linking together video cameras from local
streets and schools, traffic cameras, and gunshot microphones. Instead of soliciting early public
input about the expanded system, Oakland tried to move forward without any meaningful
engagement with the community. Residents were outraged, and the City Council voted against
expanding the system.62
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An informed debate also requires that your63
community have access to a wide range of
information in order to assess how surveillance
would work in practice and whether it would advance
local goals. Community meetings with various
speakers representing different perspectives (not just
law enforcement and the technology vendor) can
help the community understand how the surveillance
technology actually works and its potential
implications. The entity seeking to acquire new
surveillance technology should also prepare and
release a Surveillance Impact Report and a
Surveillance Use Policy to help everyone understand how a technology will work, its potential costs, and
the safeguards that will prevent its misuse if the proposal were approved. Your community may also
consider convening an ad-hoc committee of local residents, experts and advocates who can work
together to make recommendations or help complete these documents.64
“It is critical to our judicial system and our
democracy that the public and our elected
representatives be informed about the use
of these devices so that we can have a
discussion about their privacy implications
and make informed decisions about policies
for their use.”
Joe Simitian, Santa Clara County
Supervisor63
USE A SURVEILLANCE IMPACT REPORT TO MAKE AN INFORMED DECISION
The scope and potential costs of a surveillance technology should be assessed and made available to
the community through a Surveillance Impact Report. This report should include:
o Information describing the technology, how it works, and what it collects, including
technology specification sheets from manufacturers;
o The proposed purposes(s) for the surveillance technology;
o The location(s) it will be deployed and crime statistics for any location(s);
o An assessment identifying any potential impact on civil liberties and civil rights and discussing
any plans to safeguard the rights of the public; and
o The fiscal costs for the surveillance technology, including initial purchase, personnel and other
ongoing costs, and any current or potential sources of funding.
A worksheet to help your community prepare a Surveillance Impact Report is available at
aclunc.org/smartaboutsurveillance.
CASE STUDY: SANTA CRUZ COUNCILMEMBERS LACK INFORMATION FOR ALPR
DECISION
After the Santa Cruz City Council approved the use of federal funds to purchase ALPRs for the police
department, councilmembers noted that they did not have a lot of information about the
technology or its impact on the community at the time of its decision. When one councilmember
was asked what effect the scanners might have on community members, he replied, “I don’t know
enough about the technology.” Another was unaware of privacy issues, admitting, “The council
didn’t get much correspondence about the potential for the erosion of civil rights that these kinds
of devices can cause....”64
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MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
How will the community decide whether to proceed with a surveillance proposal?
Community members deserve more than just information about surveillance proposals: they need the
opportunity to help determine whether the proposal actually benefits the community and how or whether
it should move forward, either by giving input to local policymakers at public hearings or by casting their
own ballot on the issue.
In either case, initial community approval should be obtained before any steps towards acquiring
surveillance technology are taken, including applying for funding from outside entities. This ensures that
external grants do not circumvent the proper democratic process and cut community members out of the
loop. Local policymakers or the community as a whole should be given additional opportunities to weigh
in if the proposal changes or as more details become available.65
2. DEFINE THE PURPOSE: ASK HOW AND WHETHER THIS TECHNOLOGY WILL AID YOUR COMMUNITY
Your community cannot determine whether surveillance is an appropriate solution if you have not first
identified the problem. Defining the specific purpose or issues that surveillance is intended to address is
essential to evaluate the likely effectiveness of surveillance and to identify alternatives that might provide a
better fit for your community’s needs and budget. It can help highlight the individuals or communities who
are likely to be most impacted by surveillance and ensure that their thoughts and concerns are fully
understood. It also provides a starting point for crafting a Surveillance Use Policy by defining specific
objectives for which surveillance is appropriate and barring its use outside of those purposes.
What specific community purposes will be aided by adopting this technology?
A well-defined community purpose should include a specific problem and a measurable outcome that the
community desires. Vague purposes such as “protecting our city from criminals” make it difficult for the
community to understand how surveillance might be used or how its effectiveness might be measured. In
contrast, a purpose such as “increase recovery of stolen vehicles” succinctly identifies an outcome desired
by community members and helps frame public discussion. That discussion may in turn lead you to
narrow or alter the purposes for which surveillance should be used, if you decide to use it at all. 66
CASE STUDY: OAKLAND SPENDS $2M ON “HARDLY USED” POLICE TECHNOLOGY
The cash‐strapped city of Oakland learned the hard way that acquiring new police technology
without a clearly defined purpose can be a waste of time and money. A city audit revealed that the
city had squandered almost $2 million on hardly used police technology between 2006 and 2011.
The auditor recommended steps to ensure that technology purchases were intended to fulfill
specific strategic objectives and regular evaluation of their effectiveness.66
CASE STUDY: SAN JOSE’S DRONE GROUNDED UNTIL COMMUNITY APPROVES
San Jose residents were outraged when they learned that their police department had purchased
a drone without any public debate. Amid critical media coverage and protests from community
groups, civil‐rights advocates, and local residents, police apologized and said they would ground
the drone until they could conduct adequate public outreach.65
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Will this surveillance technology help your community achieve that purpose?
After your community identifies the purposes that surveillance technology might be able to address, you
should evaluate whether the proposed technology would actually achieve them. Manufacturer’s claims
should not be taken at face value, and certainly not in isolation. Instead, your community should look at
all of the evidence or arguments suggesting that surveillance will or will not effectively help you achieve
your defined purpose.67
Are there better alternatives to achieve your purpose?
Even if the proposed surveillance technology does seem likely to help your community achieve its
purpose, there still may be alternatives that are just as (or more) effective, less expensive, and/or less
likely to be misused or otherwise negatively impact your community members.
In particular, you should compare the effectiveness and costs of technology-based solutions with non-
technology-oriented approaches to address the problem. For example, multiple studies have shown that
traditional approaches such as increased lighting and foot patrols significantly reduce crime.68 You should
not automatically assume that surveillance technology will be more effective.69
3. IDENTIFY THE COSTS AND RISKS: EXAMINE FINANCIAL, LEGAL, AND PRACTICAL CONSEQUENCES
Even if a specific technology is appropriate for your community’s purposes, there still may be financial, legal
and practical concerns that may make adopting it undesirable. This section will help you measure the likely
costs of surveillance so that you can determine whether they are truly outweighed by the expected benefits.
CASE STUDY: CITIES REPLACE RED LIGHT CAMERAS WITH LONGER YELLOW LIGHTS
California cities are increasingly shutting down red light cameras as evidence mounts that the
cameras increase, rather than decrease, traffic accidents. For example, in Walnut, CA, a study
found that red light cameras resulted in dramatic increases in “red light running collisions” (400%),
“rear end collisions” (71%) and “broadside collisions” (100%)” and that “no argument can be made
that photo enforcement has improved safety . . . within the city of Walnut. In fact, the use of red
light cameras appears to have decreased safety and put roadway users at increased risk.” In light
of this evidence, more than half of the California cities that once used red light cameras have ended
their programs, turning instead to alternatives that have proven more effective at preventing
accidents such as longer yellow lights at dangerous intersections.69
CASE STUDY: SAN FRANCISCO RECONSIDERS PLANS TO EXPAND
SAFETY CAMERA PROGRAM THAT FAILS TO IMPROVE COMMUNITY SAFETY
In 2005, San Francisco set out to deter violent crime and provide police with an investigative tool
by installing video cameras in the City’s high‐crime, high‐traffic areas. However, post‐installation
crime statistics published by mandate under a city ordinance revealed that the cameras neither
reduced crime nor assisted in solving them in any meaningful way. In fact, the cameras only led to
six suspects being charged by the SFPD between 2005 and 2008. As a result, the Police Commission
reconsidered its plans to expand the program.67
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MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
How much will the technology cost your community to acquire and operate?
Deciding how to allocate funds is one of your
community’s most important tasks. Every dollar
your community spends on surveillance
technology is a dollar it cannot spend on some
other community need. Costs related to
surveillance technology will include personnel
time, training costs, maintenance and upkeep, as
well as any network and storage costs for the
data your community may collect. Potential costs
associated with risks of data breach or lawsuits
based on abuse of surveillance also need to be
recognized.70
Questions about costs cannot be dismissed solely
because your community is seeking grant funding to pay for the technology. These grants are attractive
for obvious reasons: they appear to allow your community to buy a technology without having to spend
local taxpayer dollars. But outside grants may not cover the costs that follow a technology’s adoption,
particularly the long-term costs of operation, repairs, and personnel. Estimating these costs as accurately
as possible — and making sure those estimates are shared with the community and made part of the
debate about adopting surveillance — is key.
What are the legal risks and associated potential costs of the surveillance proposal?
Surveillance technology can carry a number of significant legal risks and requirements, in part because of
rapid changes to privacy and surveillance law. Even under current law, misuse of surveillance systems or
data, or technical glitches outside of your control could subject your community to potential legal liability.
And as courts and lawmakers continue to reassess how privacy and free speech rights should apply in the
digital age, there is a risk that your community’s investment in surveillance technology could leave it
saddled with equipment that can no longer be legally used as intended. These factors need to be
accounted for when performing a cost-benefit analysis of any surveillance proposal. 71
“One more question to ask ourselves is whether
we are carefully considering the infrastructure
that is needed to support technology — the
costs of monitoring it and of staffing technology
units at a time when departments are laying off
civilians. We really need to think about all of the
aspects of technology when initial investments
are being made.”
Police Executive Research Forum, “How Are
Innovations in Technology Affecting Policing?”70
CASE STUDY: FBI REMOVES GPS TRACKERS AFTER SUPREME COURT RULES THAT
WARRANTLESS TRACKING IMPLICATES FOURTH AMENDMENT
The FBI had installed approximately 3,000 GPS trackers on cars throughout the United States,
without a warrant, when the U.S. Supreme Court ruled in 2012 that their use implicated the Fourth
Amendment. As a result, the FBI deactivated the warrantless trackers, and its agents had to
physically retrieve them. Obtaining warrants before using those GPS trackers would have ensured
the constitutionality of obtained evidence and saved the FBI considerable time and effort.71
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How could the surveillance proposal negatively impact public safety or individual rights?
A surveillance proposal designed to benefit your community may carry side effects that undermine that
objective. Insecure systems can present a tempting target for hackers, potentially making your community
less safe in the process. Surveillance programs that target or disproportionately impact communities of
color or other marginalized groups can make it harder for law enforcement to work cooperatively with
those groups to investigate crimes. And surveillance can chill political and social engagement such as
attendance at political rallies, gun shows, or religious ceremonies if community members fear that their
lives are constantly being monitored. Identifying the harms as well as benefits of surveillance is an
important part of evaluating any proposal.72
B. ESTABLISH A SURVEILLANCE USE POLICY TO MITIGATE HARMS AND PROTECT
RIGHTS
If after careful consideration and public debate your community decides that a particular surveillance
technology is worth adopting, you need to ensure that policies are in place so that it is used properly. A clear,
legally enforceable Surveillance Use Policy that provides guidance about when and how to use surveillance
can safeguard individual rights while protecting local law enforcement and your entire community from costly
lawsuits, bad press, loss of community trust, and more. Recognizing the necessity of use policies, Seattle and
Spokane, Washington, recently passed ordinances requiring police to develop use guidelines for new
surveillance equipment before using it.73 74
CASE STUDY: REDLANDS DEPLOYS INSECURE CAMERA NETWORK
The surveillance camera network in the city of Redlands made the news for the wrong reasons
when computer security experts demonstrated how easily they could take control of the cameras.
Although the police department expressed concern about “people with criminal intent using the
public camera feed to case homes or businesses or track the police force,” the network was
deployed with no security at all. Even after the story broke, the network was secured with an
outdated encryption protocol that a researcher described as “putting a diary lock on your front
door.”72
CASE STUDY: ALAMEDA COUNTY SOLICITS PUBLIC INPUT FOR STINGRAY POLICY
Before upgrading its cell phone surveillance technology, the Alameda County District Attorney
publicly released its draft use policy and solicited feedback from the community. In response to
feedback, the District Attorney made changes that resulted in a policy requiring a warrant for the
use of the device and strict limits on how data could be used. This transparent and democratic
process helped build community trust and ensured a stronger set of safeguards would be in place
from the start.74
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MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
Here are some of the key elements of a robust, legally enforceable Surveillance Use policy:
1. USE APPROPRIATELY: PLACE CLEAR LIMITS ON SURVEILLANCE
If your community has been following this guide, you’ve already defined community purposes that justify a
particular technology. Now it’s time to use those purposes to decide and codify both the acceptable uses that
will benefit the community and those that are simply prohibited. Doing so safeguards against use of the
technology in a manner the community never intended.
When is surveillance permitted or prohibited?
The first step is straightforward but essential: defining how and
when the technology may be used. Every entity in your community
that conducts surveillance should have a policy that clearly specifies
appropriate uses of each technology and bars all other uses.
In order to benefit from and reflect community input and oversight,
technology should only be used for the particular purposes for
which it was acquired. Any proposed new uses should be subject to the same public discussion as the
acquisition of new technology, allowing the community to weigh in on the appropriateness of any
expanded purpose.
Your policy needs to be consistent with constitutional
guarantees of privacy, equal protection, freedom of
speech, and freedom of religion. In fact, your use
policy should not only address clearly unlawful but
also potentially unlawful uses of surveillance
technology. If there are questions about the legality of
a specific practice, your use policy should prohibit that
practice until there is a definite answer.75
What legal or internal process is required to use surveillance?
It is also important to ensure that all legally required and internal processes are followed each time
surveillance is used. These processes help to prevent unauthorized or outright illegal uses and also make
sure that even appropriate uses of the surveillance technology minimize the impact on individual rights.76
In many cases, the best way to ensure that legal requirements are satisfied is to require a search warrant
prior to conducting surveillance, allowing the court system to play a role in overseeing the program. With
the streamlined modern warrant process, officers can seek a judge’s approval quickly and easily by simply
placing a phone call or using a mobile device.77
Internal recordkeeping, including recording the reason for each use of surveillance, can also help ensure
compliance with the appropriate use policy and create an audit trail for ongoing feedback and oversight.
How are officers trained before they conduct surveillance?
Having clear policies is not helpful if the people using the technology or the data it collects lack the
underlying knowledge to comply with those policies. Training programs for anyone involved with
surveillance must be comprehensive, encompassing not just the technology and Surveillance Use Policy
but the purposes and legal rules that inform the Policy. Training should spell out both the obligations of
anyone using the technology and the consequences for policy violations.
The police need to “have more of a dialog
with the council, because we are the ones
that . . . approve funding decisions and we
want to make sure . . . that you are
hearing everything that we hear as well.”
Seattle Councilmember Bruce Harrell
76
Publicly available use policies
were found for less than 1 in
5 local California surveillance
programs (ACLU 2014
research).75
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Are you only collecting necessary data?
Ensuring that surveillance technology is used in a way that accomplishes its stated purpose without
collecting additional data is a straightforward way to reduce the risk of privacy invasions. That’s why the
federal statute authorizing wiretaps has from its inception required “minimization” — an effort to make
sure that even after a warrant has been issued and collection is underway, police only intercept
communications relevant to the investigation, not every communication made by the target.78
The same principle should be applied to other forms of surveillance, requiring a reasonable effort to
avoid collecting superfluous information. For example, a police department that deploys drones to an
accident scene to quickly identify any need for police or emergency intervention does not need to record
and retain video footage.79
2. PREVENT MISUSE OF DATA: LIMIT WHEN DATA CAN BE USED AND WHO CAN ACCESS IT
Even data collected for a legitimate purpose can be put to illegitimate uses. It is essential that your community
establish clear rules so that surveillance data is used only for approved purposes. Doing so not only prevents
outright abuses of the data that can erode public trust but also keeps “mission creep” from altering the
balance that you have already worked out between government actions and individual liberties.
How will surveillance data be secured?
The first step in preventing misuse of data is ensuring that it is stored securely. Technical safeguards are
necessary to help protect community members’ data from accidental disclosure and misuse. You should
consult with experts and implement safeguards at multiple levels that protect data at all points in its
lifespan.
Your community may already possess secure storage space separated from other databases and computer
systems. This provides you with an obvious level of control. If you choose to store data elsewhere, you
must ensure that it is secure and subject to your safeguards. Your community should also designate
someone as an authority or custodian with responsibility over community members’ data and your
storage systems. 80
CASE STUDY: OHIO STATE HIGHWAY PATROL RETAINS ONLY ALPR HITS
The Ohio State Highway Patrol policy for automated license plate readers (ALPRs) states, “all ‘non‐
hit’ captures shall be deleted immediately.” The ALPR program is intended to detect stolen
vehicles, Amber Alerts, and persons with outstanding warrants. As a result, retaining data about
“non‐hit” vehicles does not further that purpose, and a policy of deleting that data immediately
protects the community from unnecessary risks.79
CASE STUDY: MONTEREY COUNTY SUFFERS DATA BREACH
DUE TO “TOTALLY OBSOLETE” DATA PRACTICES
Monterey County’s computer systems were breached in 2013 and the personal information of over
140,000 local residents was stolen. A subsequent grand jury investigation concluded that the
breach stemmed from “totally obsolete” data practices and a failure to follow privacy laws. The
grand jury warned of “serious financial consequences” if the county failed to change its practices.80
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MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
Under what circumstances can collected data be accessed or used?
In addition to technical safeguards to protect data, you should also limit the circumstances under which it
can be legitimately accessed or used. These limits should be based on the specific purposes your
community agreed to when it adopted the technology. For example, if the purpose of the technology is to
address specific violent crimes, your policy might allow database searches only as part of an official
investigation of a violent crime, and only for data that is related to that investigation. Data access and use
policies that are consistent with the articulated purposes for the system will provide guidance to operators
and engender community trust by deterring abuses that can follow unfettered access to surveillance data.
Your community’s goal of balancing privacy and security will be easier to achieve if particular data access
and use limits are accompanied by steps to ensure the rules are followed. Database access should be
limited — for example, by only allowing junior staff to access data with the permission and guidance of a
more senior officer, or by limiting data access solely to senior officers. As explained earlier, training is a
must. Restricting data access to a limited set of trained employees decreases the potential that community
members’ data can be misused. To ensure targeted use of data, it may be appropriate to require a search
warrant or similar external process before the data can be accessed at all. 81
What limits exist on sharing data with outside entities?
Placing limits on how data use is a great step, but third parties that receive the collected data may not
have the same limits in place. To protect residents’ privacy and prevent uses of information contrary to
community desires, it is important to articulate when — if ever — the technology’s purposes justify
sharing any collected information. During the public debate over your Surveillance Use Policy, the
community should decide when sharing is permissible and when it is prohibited.
If data can be shared, your community must also determine how to ensure that the entity receiving the
data lives up to your community’s standards. This may require contractual language binding the third
party to your data policies and safeguards. For example, the city of Menlo Park, California, specifically
requires by ordinance that any agreement with Northern California’s fusion center demand compliance
with the City’s own retention policy.82 If a potential recipient of your data cannot agree with your policies
or conditions, the best choice is to not share your data.
3. LIMIT DATA RETENTION: KEEP INFORMATION ONLY AS LONG AS NECESSARY
The longer you retain information, the greater the potential privacy and security risks. The easiest way to
minimize these risks is to retain only necessary information and to delete it after the purpose for its collection
is achieved.
CASE STUDY: LAX POLICIES LEAD TO “LOVEINT” ABUSE
Without strong policies limiting access to data, the temptation to misuse government databases
for personal interests can be hard to resist. The NSA even has a specific term, LOVEINT, for
employees who monitor their significant others. Two Fairfield, CA, officers could face criminal
charges after using a statewide police database to screen women from online dating sites.81
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Does retaining data help accomplish the purpose for which the technology was acquired?
To maximize the usefulness of your technology and minimize civil liberties concerns, a retention period
should not be longer than necessary to directly advance community purposes. For instance, deploying
automated license plate readers to83
locate stolen or Amber Alert vehicles
is not aided by the collection of
historical data. Retaining data “just in
case it becomes useful” increases the
risk that data will be used contrary to
the purpose agreed upon by the
community or wind up in the hands of
a bad actor. Retaining data can also increase the costs of surveillance by requiring expensive storage
solutions and making it harder to effectively use the system. Focusing on the specific objective that
surveillance is intended to accomplish can help you determine a retention period that balances that
objective with the costs and risks associated with data retention.
Are there other legal or policy reasons that inform your data retention policy?
There may be other legal and policy issues that affect your data retention policy, informed by legal
concerns unrelated to your community’s purposes. For example, your community should choose a
retention period that balances a desire to be responsive to public records requests with residents’ civil
liberties, including privacy. Responsiveness to records requests should not be a primary justification for
an extended retention period, however, since community concerns about surveillance are better
addressed by retaining less information in the first place.
What happens when the data retention period expires?
To prevent misuse of data after your community’s desired retention period has lapsed, ensure that data is
regularly deleted after that time. This can be accomplished via automated technical measures or periodic
audits.
Before data is collected, your community should also decide whether there are any specific circumstances
that justify the retention of data beyond your community’s chosen retention period. For instance, it might
be appropriate to preserve data relevant to a specific ongoing investigation, data necessary to complete an
investigation of internal data misuse, and data relevant to a criminal defendant’s case. Any such
conditions should be informed by your community’s purposes and clearly articulated in your Surveillance
Use Policy.
C. ENSURE ACCOUNTABILITY BY ENFORCING POLICIES AND ENCOURAGING ONGOING
PUBLIC ENGAGEMENT
Even if your community has already deployed surveillance technology, the community as a whole has a
crucial role in ensuring that the public interest is promoted through its use. One key question is whether your
Surveillance Use Policy is effectively safeguarding individual rights and preventing abuses. A second is
whether the assumptions you made when you approved surveillance in the first place still hold true after
actual experience with the technology and its impact. Revamping or even cancelling an ineffective or
imbalanced program is better than wasting time, money, and community trust on a tool that does more harm
than good.
“If there’s anything of a criminal nature recorded on video,
it’s grabbed and inventoried within hours. Most
everything else is never looked at again, so it’s purged
automatically.”
Commander Steven Caluris, Chicago Police Department83
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MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
1. IDENTIFY AND ADDRESS ABUSES: AUDIT USE OF TECHNOLOGIES AND DATA AND ADDRESS ANY MISUSE
The safeguards in your Surveillance Use Policy are only worthwhile if the policy is actually followed. But
given the secretive nature of many forms of surveillance, ensuring compliance takes conscious effort. Strong
internal and external oversight and auditing can help identify isolated or systemic abuses of surveillance
technology, and legally enforceable sanctions can deter both.
How are operators supervised?
Personnel management and technical measures both
facilitate internal oversight of your technology and data.
Designating a chain of command for a given surveillance
technology helps specific personnel understand what
responsibilities they have over the equipment or data and
makes it easy to trace where misuse occurred. All of this
helps your community deter abuses and guarantee that
resources are used wisely. 84
How will misuses of the technology be identified?
The best way to identify misuse of surveillance is to “watch the watchers” by keeping thorough records
of each time surveillance is deployed or surveillance data is called up. The person or persons with
oversight responsibility should be independent, given full access to the technology and database, and
empowered to receive complaints about misuse and draw conclusions that can lead to legally enforceable
consequences. To catch what human oversight misses, your community should ensure that technical
measures including access controls and audit logs are in place. Placing the oversight authority with a third
party such as the City Council or a citizen panel may also increase the likelihood that the misuses are
accurately identified. 85
What legally enforceable sanctions exist to deter misuse and abuse of this technology?
By establishing consequences for violations of the guidelines, your community encourages proper use of
the technology and sends a message that community values apply to everyone. Depending on the
circumstances, sanctions ranging from retraining to fines, suspensions, or termination may be appropriate
for violations of your Surveillance Use Policy. In addition, your community should provide an
appropriate remedy for anyone harmed by an abuse. Legally enforceable sanctions discourage misuse and
guarantee that aggrieved community members will be made whole.
“As stewards of the public’s
interests, we know the government
doesn’t get to simply say ‘trust us’
and carry on: we have to earn that
trust on a daily basis. We have to be
accountable and transparent….”
Former Oakland Mayor Jean Quan84
CASE STUDY: FRESNO ADOPTS ANNUAL AUDIT OF VIDEO SURVEILLANCE
When the Fresno Police Department proposed a citywide video‐policing program using live‐feed
cameras, the city council required an annual independent audit to ensure that all of the privacy
and security guidelines for the system’s use were being followed. Fresno Police Chief Jerry Dyer
said he supported the audit: “I have no doubt the audit will be very helpful to our ongoing video
policing operations.” The city appointed a retired federal district court judge as auditor, who then
examined current use of the system and made specific policy recommendations.85
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2. KEEP THE DIALOG OPEN: ENCOURAGE PUBLIC OVERSIGHT AND ONGOING DISCUSSION
Community oversight and feedback plays two essential roles in ensuring that any current surveillance program
actually benefits your community. First, transparency about abuses of surveillance allows the community to
determine whether the Surveillance Use Policy or any associated sanctions need to be revised to address the
issue. Second, as your community learns first-hand whether surveillance is effective and how it impacts
different individuals and groups, you may wish to reassess the purposes for which surveillance should be used
or even whether it should still be used at all. Surveillance should be under the control of the community at all
times, not just when it is initially being considered.
How will the community continue to be informed about the surveillance program?
It is important that your community’s oversight mechanisms not only are in place before surveillance is
used but also remain available as long as the surveillance program continues or any collected data
remains. This allows the community to continue to learn about and provide feedback on the effectiveness
and impact of surveillance, and provides the information you will need to evaluate any changes going
forward.
One of the most effective ways to keep your community informed is to produce an annual report about
each surveillance technology that has been used in the past year. This report should include:
o A description of how and how often the technology was used;
o Information, including crime statistics, that indicate whether the technology was effective at
accomplishing its stated purpose;
o A summary of community complaints or concerns about the technology;
o Information about any violations of the Surveillance Use Policy, data breaches, or similar incidents,
including the actions taken in response, or results of any internal audits;
o Whether and how data acquired through the use of the technology was shared with any outside
entities;
o Statistics and information about Public Records Act requests, including responses; and
o The total annual costs for the technology, including personnel and other ongoing costs, and any
external funding available to fund any or all of those costs in the coming year.
In addition, there may be other ways to provide your community with information about the operation
and effectiveness of the surveillance program. Responding to Public Records Act requests with as much
information as possible, taking into account factors such as the privacy rights of individuals whose
information may be included in the requested data, is one way to allow interested community members
access to concrete information about the program. Creating standing committees of community
members, regularly holding public events and forums, and establishing open inspection periods for the
technology can also help keep the community informed.
How will local officials and the public re‐evaluate the decision to engage in surveillance or the
existing policies and safeguards?
The community’s decision to approve surveillance should be reconsidered on an annual basis. If there is
evidence that calls into question the conclusion that the benefits of surveillance outweigh costs and
concerns, or that there are better ways to achieve the same purpose with fewer costs or risks,
policymakers should seek community input and take whatever action is appropriate to address these
concerns. That may involve narrowing the purpose or scope of surveillance, requiring modifications to
the Surveillance Use Policy, or exploring alternatives that better address community needs.
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MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
Conclusion
Communities increasingly understand the need to make smart choices about surveillance technology and
ensure that time, energy, and resources are not spent on systems that cost more, do less, and threaten the
rights of community members. Community members demand — and deserve — a voice in any decisions
about surveillance technology. Proper transparency, accountability, and oversight must be the rule in
considering any surveillance technology proposal. We hope the recommendations in this guide help you work
to enact local and state policies to ensure consistent public process each time surveillance technology is
considered.
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Appendix: Model Surveillance & Community Safety Ordinance
A. KEY PRINCIPLES OF THE MODEL ORDINANCE
o Informed Public Debate at Earliest Stage of Process: Public notice, distribution of information
about the proposal, and public debate prior to seeking funding or otherwise moving forward with
surveillance technology proposals.
o Determination that Benefits Outweigh Costs and Concerns: Local leaders, after facilitating an
informed public debate, expressly consider costs (fiscal and civil liberties) and determine that
surveillance technology is appropriate or not before moving forward.
o Thorough Surveillance Use Policy: Legally enforceable Surveillance Use Policy with robust civil
liberties, civil rights, and security safeguards approved by policymakers.
o Ongoing Oversight & Accountability: Proper oversight of surveillance technology use and
accountability through annual reporting, review by policymakers, and enforcement mechanisms.
B. MODEL ORDINANCE TEXT
The [Council/Board of Supervisors] finds that any decision to use surveillance technology must be judiciously
balanced with the need to protect civil rights and civil liberties, including privacy and free expression, and the
costs to [City/County]. The [Council/Board] finds that proper transparency, oversight, and accountability are
fundamental to minimizing the risks posed by surveillance technologies. The [Council/Board] finds it
essential to have an informed public debate as early as possible about whether to adopt surveillance
technology. The [Council/Board] finds it necessary that legally enforceable safeguards be in place to protect
civil liberties and civil rights before any surveillance technology is deployed. The [Council/Board] finds that if
surveillance technology is approved, there must be continued oversight and annual evaluation to ensure that
safeguards are being followed and that the surveillance technology’s benefits outweigh its costs.
NOW, THEREFORE, BE IT RESOLVED that the [Council/Board] of [City/County] adopts the following:
Section 1. Title
This ordinance shall be known as the Surveillance & Community Safety Ordinance.
Section 2. [Council/Board] Approval Requirement
1) A [City/County] entity must obtain [Council/Board] approval at a properly-noticed public hearing
prior to any of the following:
a) Seeking funds for surveillance technology, including but not limited to applying for a grant
or soliciting or accepting state or federal funds or in-kind or other donations;
b) Acquiring new surveillance technology, including but not limited to procuring such
technology without the exchange of monies or consideration;
c) Using new surveillance technology, or using existing surveillance technology for a purpose,
in a manner or in a location not previously approved by the [Council/Board]; or
d) Entering into an agreement with a non-[City/County] entity to acquire, share or otherwise
use surveillance technology or the information it provides.
2) A [City/County] entity must obtain [Council/Board] approval of a Surveillance Use Policy prior to
engaging in any of the activities described in subsection (1)(b)-(d).
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MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
Section 3. Information Required
1) The [City/County] entity seeking approval under Section 2 shall submit to the [Council/Board] a
Surveillance Impact Report and a proposed Surveillance Use Policy at least forty-five (45) days prior
to the public hearing.
2) The [Council/Board] shall publicly release in print and online the Surveillance Impact Report and
proposed Surveillance Use Policy at least thirty (30) days prior to the public hearing.
Section 4. Determination by [Council/Board] that Benefits Outweigh Costs and Concerns
The [Council/Board] shall only approve any action described in Section 2, subsection (1) of this ordinance
after making a determination that the benefits to the community of the surveillance technology outweigh the
costs and that the proposal will safeguard civil liberties and civil rights.
Section 5. Compliance for Existing Surveillance Technology
Each [City/County] entity possessing or using surveillance technology prior to the effective date of this
ordinance shall submit a proposed Surveillance Use Policy no later than ninety (90) days following the
effective date of this ordinance for review and approval by [Council/Board]. If such review and approval has
not occurred within sixty (60) days of the submission date, the [City/County] entity shall cease its use of the
surveillance technology until such review and approval occurs.
Section 6. Oversight Following [Council/Board] Approval
1) A [City/County] entity which obtained approval for the use of surveillance technology must submit a
Surveillance Report for each such surveillance technology to the [Council/Board] within twelve (12)
months of [Council/Board] approval and annually thereafter on or before November 1.
2) Based upon information provided in the Surveillance Report, the [Council/Board] shall determine
whether the benefits to the community of the surveillance technology outweigh the costs and
whether civil liberties and civil rights are safeguarded. If the benefits do not outweigh the costs or
civil rights and civil liberties are not safeguarded, the [Council/Board] shall direct that use of the
surveillance technology cease and/or require modifications to the Surveillance Use Policy that will
resolve the above concerns.
3) No later than January 15 of each year, the [Council/Board] shall hold a public meeting and publicly
release in print and online a report that includes, for the prior year:
a. A summary of all requests for [Council/Board] approval pursuant to Section 2 or Section 5,
including whether the [Council/Board] approved or rejected the proposal and/or required
changes to a proposed Surveillance Use Policy before approval; and
b. All Surveillance Reports submitted.
Section 7. Definitions
The following definitions apply to this Ordinance:
1) “Surveillance Report” means a written report concerning a specific surveillance technology that
includes all of the following:
a. A description of how the surveillance technology was used;
b. Whether and how often data acquired through the use of the surveillance technology was
shared with outside entities, the name of any recipient entity, the type(s) of data disclosed,
under what legal standard(s) the information was disclosed, and the justification for the
disclosure(s);
c. A summary of community complaints or concerns about the surveillance technology;
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d. The results of any internal audits, any information about violations of the Surveillance Use
Policy, and any actions taken in response;
e. Information, including crime statistics, that help the community assess whether the
surveillance technology has been effective at achieving its identified purposes;
f. Statistics and information about public records act requests, including response rates; and
g. Total annual costs for the surveillance technology, including personnel and other ongoing
costs, and what source of funding will fund the technology in the coming year.
2) “[City/County] entity” means any department, bureau, division, or unit of the [City/County].
3) “Surveillance technology” means any electronic device, system utilizing an electronic device, or
similar used, designed, or primarily intended to collect, retain, process, or share audio, electronic,
visual, location, thermal, olfactory or similar information specifically associated with, or capable of
being associated with, any individual or group.
4) “Surveillance Impact Report” means a publicly released written report including at a minimum the
following: (a) Information describing the surveillance technology and how it works, including
product descriptions from manufacturers; (b) information on the proposed purposes(s) for the
surveillance technology; (c) the location(s) it may be deployed and crime statistics for any location(s);
(d) an assessment identifying any potential impact on civil liberties and civil rights and discussing any
plans to safeguard the rights of the public; and (e) the fiscal costs for the surveillance technology,
including initial purchase, personnel and other ongoing costs, and any current or potential sources of
funding.
5) "Surveillance Use Policy" means a publicly released and legally enforceable policy for use of the
surveillance technology that at a minimum specifies the following:
a. Purpose: The specific purpose(s) that the surveillance technology is intended to advance.
b. Authorized Use: The uses that are authorized, the rules and processes required prior to
such use, and the uses that are prohibited.
c. Data Collection: The information that can be collected by the surveillance technology.
d. Data Access: The individuals who can access or use the collected information, and the rules
and processes required prior to access or use of the information.
e. Data Protection: The safeguards that protect information from unauthorized access,
including encryption and access control mechanisms.
f. Data Retention: The time period, if any, for which information collected by the
surveillance technology will be routinely retained, the reason such retention period is
appropriate to further the purpose(s), the process by which the information is regularly
deleted after that period lapses, and the specific conditions that must be met to retain
information beyond that period.
g. Public Access: How collected information can be accessed or used by members of the
public, including criminal defendants.
h. Third Party Data Sharing: If and how other [City/County] or non-[City/County] entities
can access or use the information, including any required justification or legal standard
necessary to do so and any obligations imposed on the recipient of the information.
i. Training: The training required for any individual authorized to use the surveillance
technology or to access information collected by the surveillance technology, including any
training materials.
j. Auditing and Oversight: The mechanisms to ensure that the Surveillance Use Policy is
followed, including internal personnel assigned to ensure compliance with the policy,
internal recordkeeping of the use of the technology or access to information collected by the
technology, technical measures to monitor for misuse, any independent person or entity with
oversight authority, and the legally enforceable sanctions for violations of the policy.
28
MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
Section 8. Enforcement
1) Any violation of this Ordinance constitutes an injury, and any person may institute proceedings for
injunctive relief, declaratory relief, or writ of mandate in any court of competent jurisdiction to
enforce this Ordinance.
2) A court shall award costs and reasonable attorneys' fees to the plaintiff who is the prevailing party in
an action brought to enforce this Ordinance.
3) In addition, for a willful, intentional, or reckless violation of this Ordinance, an individual shall be
deemed guilty of a misdemeanor and may be punished by a fine not exceeding $1,000 per violation,
imprisonment in the county jail for not more than six months, or both such a fine and imprisonment.
Section 9. Severability
The provisions in this Ordinance are severable. If any part or provision of this Ordinance, or the application
of this Ordinance to any person or circumstance, is held invalid, the remainder of this Ordinance, including
the application of such part or provisions to other persons or circumstances, shall not be affected by such
holding and shall continue to have force and effect.
Section 10. Effective Date
This Ordinance shall take effect on [DATE].
29
ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE
1 For example, the San Francisco Police Department’s Mission Statement states that “policing strategies must preserve
and advance democratic values” and that “police must respect and protect the rights of all citizens as guaranteed by the
state’s Constitution.” Police Department, Mission Statement, http://sf-police.org/index.aspx?page=1616.
2 B.T. Lewis & Taymeh Jahsi, Stop using social media to monitor south Fresno’s protesters, The Fresno Bee, Feb. 10, 2016,
available at http://www.fresnobee.com/opinion/readers-opinion/article59388976.html.
3 Matt Cagle. This Surveillance Software is Probably Spying on #BlackLivesMatter, ACLU of Northern California (Dec. 15,
2015), https://www.aclunc.org/blog/surveillance-software-probably-spying-blacklivesmatter.
4 See Press Release, Leadership Conference, Civil Rights Principles for the Era of Big Data,
http://www.civilrights.org/press/2014/civil-rights-principles-big-data.html.
5 Terrence O’Brien, Caught Spying on Student, FBI Demands GPS Tracker Back, Wired.com, Oct. 7, 2010,
http://www.wired.com/2010/10/fbi-tracking-device/.
6 Michael Isikoff, FBI Tracks Suspects’ Cell Phones Without a Warrant, Newsweek, Feb, 18, 2010 (updated Mar. 13, 2010),
available at http://www.newsweek.com/fbi-tracks-suspects-cell-phones-without-warrant-75099.
7 David Kravets, Rights Groups Decry New NSA Leak: Snooping on Muslim-Americans’ E-mail, Ars Technica (July 9, 2014),
http://arstechnica.com/tech-policy/2014/07/rights-groups-decry-new-nsa-leak-snooping-on-muslim-americans-e-
mail/.
8 Matt Apuzzo and Al Baker, New York to Appoint Civilian to Monitor Police’s Counterterrorism Activity, N.Y. Times, Jan. 7,
2016, available at http://www.nytimes.com/2016/01/08/nyregion/new-york-to-appoint-monitor-to-review-polices-
counterterrorism-activity.html; Case page, Raza v. City of New York – Legal Challenge to NYPD Muslim Surveillance
Program, Jan. 7, 2016, https://www.aclu.org/cases/raza-v-city-new-york-legal-challenge-nypd-muslim-surveillance-
program.
9 See Tanvir v. Holder, Case No. 13-CV-6951 (S.D. N.Y. Apr. 22, 2014) (First Amended Complaint), available at
http://apps.washingtonpost.com/g/documents/world/lawsuit-accusing-us-of-putting-people-on-no-fly-list-after-they-
say-they-wont-spy/941/.
10 George Joseph, Exclusive: Feds Regularly Monitored Black Lives Matter Since Ferguson, The Intercept, July 24, 2015,
https://theintercept.com/2015/07/24/documents-show-department-homeland-security-monitoring-black-lives-matter-
since-ferguson/.
11 Matt Cagle. This Surveillance Software is Probably Spying on #BlackLivesMatter, ACLU of Northern California (Dec. 15,
2015), https://www.aclunc.org/blog/surveillance-software-probably-spying-blacklivesmatter; see also Shaun King, Fresno
police join group of officials monitoring #BlackLivesMatter hashtag, labeling a peaceful movement a threat, N.Y. Daily News, Dec. 17,
2015, available at http://www.nydailynews.com/news/national/king-monitoring-blacklivesmatter-labels-movement-
threat-article-1.2468808.
12 David Rogers, Black Lives Matter Supporters in Oregon Targeted by State Surveillance, ACLU Speak Freely blog, Nov. 11,
2015, https://www.aclu.org/blog/speak-freely/black-lives-matter-supporters-oregon-targeted-state-surveillance;
Courtney Sherwood, Oregon attorney general ‘appalled’ by probe of Black Lives Matter, Reuters, Nov. 11, 2015,
http://www.reuters.com/article/us-oregon-race-idUSKCN0T104N20151112.
13 Jeremy Gillula and Dave Maass, What You Can Learn from Oakland’s Raw ALPR Data, Electronic Frontier Foundation,
Jan. 21, 2015, https://www.eff.org/deeplinks/2015/01/what-we-learned-oakland-raw-alpr-data.
14 Angel Jennings, Richard Winston & James Rainey, Sherriff’s Secret Air Surveillance of Compton Sparks Outrage, L.A. Times,
Apr. 23, 2014, available at http://www.latimes.com/local/lanow/la-me-ln-sheriffs-surveillance-compton-outrage-
20140423-story.html.
15 Andrea Peterson, LOVEINT: When NSA Officers Use Their Spying Power on Love Interests, Wash. Post, Aug. 24, 2013,
available at http://www.washingtonpost.com/blogs/the-switch/wp/2013/08/24/loveint-when-nsa-officers-use-their-
spying-power-on-love-interests/.
16 See Julia Angwin & Jennifer Valentino-DeVries, New Tracking Frontier: Your License Plates, Wall St. J., Sep. 29, 2012,
available at http://online.wsj.com/news/articles/SB10000872396390443995604578004723603576296.
17 Jenna McLaughlin, The FBI v. Apple Debate Just Got Less White, The Intercept, Mar. 8, 2016,
https://theintercept.com/2016/03/08/the-fbi-vs-apple-debate-just-got-less-white/.
18 Rania Khalek, Activists of Color Lead Charge Against Surveillance, NSA, Truthout, Oct. 30, 2013, http://www.truth-
out.org/news/item/19695-activists-of-color-at-forefront-of-anti-nsa-movement.
19 Riley v. California, 134 S. Ct. 2473, 2489 (2014).
20 United States v. Jones, 132 S.Ct. 945, 955, 56 (2012).
Endnotes
30
MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
21 Adam Goldman & Matt Apuzzo, NYPD Defends Tactics over Mosque Spying; Records Reveal New Details on Muslim
Surveillance, Huffington Post (Feb 25, 2012), http://www.huffingtonpost.com/2012/02/24/nypd-defends-tactics-
over_n_1298997.html; Adam Goldman & Matt Apuzzo, New York Drops Unit That Spied on Muslims, N.Y. Times, April
15, 2014, available at http://www.nytimes.com/2014/04/16/nyregion/police-unit-that-spied-on-muslims-is-
disbanded.html.
22 Hina Shamsi and Ramzi Kassem, The NYPD spied on Muslim Americans. Will a court settlement change anything?, The
Guardian, Jan. 8, 2016, http://www.theguardian.com/commentisfree/2016/jan/08/nypd-spied-muslim-americans-will-
court-settlement-bring-change.
23 Angel Jennings, Richard Winston & James Rainey, Sherriff’s Secret Air Surveillance of Compton Sparks Outrage, L.A. Times,
Apr. 23, 2014, available at http://www.latimes.com/local/lanow/la-me-ln-sheriffs-surveillance-compton-outrage-
20140423-story.html.
24 Police Executive Research Forum, How Are Innovations in Technology Transforming Policing? 26 (Jan. 2012) [hereinafter
PERF Report], available at http://www.policeforum.org/assets/docs/Critical_Issues_Series/
how%20are%20innovations%20in%20technology%20transforming%20policing%202012.pdf.
25 Press Release, Office of the Controller, Butkovitz Alarmed by Police Camera Program, June 20, 2012,
http://www.philadelphiacontroller.org/page.asp?id=792.
26 See Fazaga v. FBI, 844 F.Supp.2d 1022 (C.D. Cal. 2012).
27 Adam Goldman, NYPD settles lawsuits over Muslim monitoring, Wash. Post, Jan. 7, 2016, available at
https://www.washingtonpost.com/world/national-security/nypd-settles-lawsuits-over-muslim-
monitoring/2016/01/07/bdc8eb98-b3dc-11e5-9388-466021d971de_story.html.
28 See Tim Cushing, Another Bogus Hit from a License Plate Reader Results in Another Citizen Surrounded by Cops with Guns Out,
TechDirt (May 23, 2014), https://www.techdirt.com/articles/20140513/07404127218/another-bogus-hit-license-plate-
reader-results-another-citizen-surrounded-cops-with-guns-out.shtml.
29 Symposium, The Value of Privacy, U. Cal.-Hastings School of L. Const. L. Q., Apr. 7, 2014 (oral remarks), available at
http://livestre.am/4P7Lk.
30 Cal. Civil Code § 1798.29 (2014).
31 Larry Ponemon, Cost of Data Breaches Rising Globally, Says ‘2015 Cost of a Data Breach Study: Global Analysis,’ May 27, 2015,
https://securityintelligence.com/cost-of-a-data-breach-2015/.
32 Will Kane, Oakland to Limit Surveillance Center to Port, Airport, S.F. Gate, Mar. 6, 2014, available at
http://www.sfgate.com/bayarea/article/Oakland-to-limit-surveillance-center-to-port-5290273.php.
33 Cyrus Farivar, In rare move, Silicon Valley county gov’t kills stingray acquisition, Ars Technica, May 7, 2015,
http://arstechnica.com/tech-policy/2015/05/in-rare-move-silicon-valley-county-govt-kills-stingray-acquisition/.
34 Press Release, San Jose Police Provide Statement Regarding Purchase of Unmanned Aerial System (UAS), San Jose Police Dept.,
Aug. 5, 2014, available at http://www.sjpd.org/iNews/viewPressRelease.asp?ID=1874.
35 Robert Salonga, San Jose: Police apologize for drone secrecy, promise transparency, San Jose Mercury News, Aug. 5, 2014,
available at http://www.mercurynews.com/crime-courts/ci_26279254/san-jose-police-apologize-secret-drone-purchase-
promise.
36 Riley v. California, 573 U.S. (2014), Slip Op. at *28.
37 U.S. v. Jones, 132 S. Ct. 945, 954 (2012) (Sotomayor, J., concurring); id. at 957 (Alito, Ginsberg, Breyer, and Kagan, J.,
concurring in the judgment).
38 Charlie Savage and Jonathan Wiseman, N.S.A. Collection of Bulk Call Data Is Ruled Illegal, N.Y. Times, May 7, 2015,
available at http://www.nytimes.com/2015/05/08/us/nsa-phone-records-collection-ruled-illegal-by-appeals-court.html;
Klayman v. Obama, Civ. No. 13-0851 (D.D.C. Dec. 16, 2013).
39 Ballot Pamplet., Proposed Amendments to Cal. Const. with Arguments to Voters, Gen. Elec. (Nov. 7, 1972).
40 White v. Davis, 533 P.2d (Cal. 1975).
41 People v. Cook 41 Cal. 3d 373 (1985).
42 Robins v. Pruneyard Shopping Center, 592 P.2d 899 (Cal. 1979) (holding that, under the California Constitution,
members of the public have a legal right to pass out pamphlets and seek signatures in a privately owned shopping
center), aff’d, .447 U.S. 74 (1980).
43 Cal. Penal Code §§ 1546-1546.4. See generally Tracy Seipel and Eric Kurhi, California digital privacy laws boosted, protecting
consumers from Big Brother, big business, San Jose Mercury News, Oct. 9, 2015, available at
http://www.mercurynews.com/health/ci_28948653/california-digital-privacy-laws-boosted-protecting-consumers-
from.
44 Cal. Gov’t Code § 53166.
45 Cal. Civil Code §§ 1798.29, 1798.82, and 1798.90.5.
31
ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE
46 Jennifer Steinhauer and Jonathan Weisman, U.S. Surveillance in Place Since 9/11 Is Sharply Limited, N.Y. Times, Jun. 2,
2015, available at http://www.nytimes.com/2015/06/03/us/politics/senate-surveillance-bill-passes-hurdle-but-
showdown-looms.html?_r=0; see also U.S.A. Freedom Act, H.R. 2048, 114th Cong. (2016).
47 Allie Bohm, Status of Location Privacy Legislation in the States, ACLU Free Future (April 8, 2014),
https://www.aclu.org/blog/technology-and-liberty-national-security/status-location-privacy-legislation-states (as of May
6, 2014).
48 Allie Bohm, Status of 2014 Domestic Drone Legislation in the States, ACLU Free Future (April 22, 2014),
https://www.aclu.org/blog/technology-and-liberty/status-2014-domestic-drone-legislation-states (as of May 6, 2014).
49Smart About Surveillance, ACLU of California, http://www.aclunc.org/smartaboutsurveillance.
50 Id.
51 Interview with Brian Hofer, Transparency over secrecy: Oakland’s surveillance policy, KALW Local Public Radio, available at
http://kalw.org/post/transparency-over-secrecy-oakland-s-surveillance-policy#stream/0.
52 See Bonnie Eslinger, Menlo Park Council Approves Ordinance Regulating Police Use of Surveillance, San Jose Mercury News,
May 14, 2014, available at http://www.mercurynews.com/breaking-news/ci_25766277/menlo-park-council-approves-
ordinance-regulating-police-use; Seattle City Council Enacts Groundbreaking Legislation Protecting Residents’ Civil Liberties, Local
Progress (May 1, 2013), http://localprogress.org/seattle-city-council-enacts-groundbreaking-legislation-protecting-
residents-civil-liberties/.
53 U.S. Dep’t of Homeland Security, CCTV: Developing Best Practices (2007), available at
http://www.dhs.gov/xlibrary/assets/privacy/privacy_rpt_cctv_2007.pdf.
54 State of Surveillance in California – Findings and Recommendations, ACLU of California, Jan. 2015, available at
https://www.aclunc.org/sites/default/files/201501-aclu_ca_surveillancetech_summary_and_recommendations.pdf.
55 Redlands Police Department, Citizen Privacy Council, http://www.cityofredlands.org/police/CPC.
56 Halima Kazen, Watching the Watchers: Oakland Seeks Control of Law Enforcement Surveillance, The Guardian, July 13, 2015,
available at http://www.theguardian.com/us-news/2015/jul/13/oakland-law-enforcement-surveillance.
57 Memorandum, Establishing Ad Hoc Committee to Review the Community Warning System and Industrial Safety Ordinance (Sept.
18, 2012), http://64.166.146.155/agenda_publish.cfm?mt=ALL&get_month=9&get_year=2012&dsp=agm&
seq=12339&rev=0&ag=241&ln=23604&nseq=0&nrev=0&pseq=12303&prev=0.
58 Keynote address of Malkia Cyril, Targeted Surveillance, Civil Rights, and the Fight for Democracy, Center for Media Justice,
Oct. 13, 2015, available at http://centerformediajustice.org/2015/10/13/targeted-surveillance-civil-rights-and-the-fight-
for-democracy/.
59 See Memorandum, City Administrator’s Weekly Report (Apr. 25, 2014),
http://www2.oaklandnet.com/oakca1/groups/cityadministrator/documents/report/oak046804.pdf.
60 http://www2.oaklandnet.com/Government/o/CityAdministration/d/PrivacyAdvisoryCommission/index.htm
61 Matt Richtel, A Police Gadget Tracks Phones? Shhh! It’s Secret, N.Y. Times, Mar. 15, 2015, available at
http://www.nytimes.com/2015/03/16/business/a-police-gadget-tracks-phones-shhh-its-secret.html?_r=0; Cyrus
Farivar, In rare move, Silicon Valley county gov’t kills stingray acquisition, Ars Technica, May 7, 2015,
http://arstechnica.com/tech-policy/2015/05/in-rare-move-silicon-valley-county-govt-kills-stingray-acquisition/.
62 Ali Winston, Oakland City Council Rolls Back the Domain Awareness Center, East Bay Express (Mar. 5, 2014),
http://www.eastbayexpress.com/SevenDays/archives/2014/03/05/oakland-city-council-rolls-back-the-dac.
63 Cyrus Farivar, In rare move, Silicon Valley county gov’t kills stingray acquisition, Ars Technica, May 7, 2015,
http://arstechnica.com/tech-policy/2015/05/in-rare-move-silicon-valley-county-govt-kills-stingray-acquisition/.
64 John Malkin, Surveillance City? GoodTimes, Jan 29, 2014,
http://www.gtweekly.com/index.php/santacruznews/goodtimescoverstories/5386surveillancecity.html.
65 Robert Salonga, San Jose: Police Apologize for Drone Secrecy, Promise Transparency, San Jose Mercury News, Aug 5, 2014,
available at http://www.mercurynews.com/crime-courts/ci_26279254/san-jose-police-apologize-secret-drone-purchase-
promise.
66 See Oakland City Auditor, Police Technology Performance Audit: FY 2006–07 through 2010–11 (2012), available at
http://www.oaklandauditor.com/images/oakland/auditreports/0pd%20tech.pdf.
67 See Citris, Cistris Study on SF Public Cameras Released (Jan. 9, 2009), http://citris-uc.org/citris-study-on-sf-public-
cameras-released/.
68 See David P. Farrington & Brandon C. Welsh, Effects of Improved Street Lighting on Crime: A Systematic Review, Home
Office Research Study 251 (Aug. 2002), p. 42; Ronald V. Clarke, U.S. Department of Justice, Office of Community
Oriented Policing Services, Improving Street Lighting to Reduce Crime in Residential Areas (Dec. 2008), available at
http://cops.usdoj.gov/Publications/e1208-StreetLighting.pdf; Jay Beeber, Collision Analysis of the Photo Enforced Intersection
in Walnut, CA, http://www.thenewspaper.com/rlc/docs/2014/ca-walnut.pdf.
69 See Steve Scauzillo, Red Light Cameras Being Stopped, L.A. Daily News (Jan. 21, 2014),
http://www.dailynews.com/general-news/20140121/red-light-cameras-being-stopped.
32
MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES
70 PERF Report, supra note 24, at 44.
71 United States v. Jones, 132 S. Ct. 945 (2012); Joann Pan, FBI Turns Off 3000 GPS Devices After Ruling, Mashable (Feb.
27, 2012), http://mashable.com/2012/02/27/fbi-turns-off-3000-gps-devices/.
72 Kashmir Hill, Whoops, Anyone Could Watch California City’s Police Surveillance Cameras, Forbes.com (Aug. 21, 2014),
http://www.forbes.com/sites/kashmirhill/2014/08/11/surveillance-cameras-for-all/.
73 Seattle City Council Enacts Groundbreaking Legislation Protecting Residents’ Civil Liberties, Local Progress (May 1, 2013),
http://localprogress.org/seattle-city-council-enacts-groundbreaking-legislation-protecting-residents-civil-liberties/;
Jamela Debelak, ACLU of Washington, Surveillance: Spokane Acts to Protect Privacy and Provide Transparency (Aug. 21, 2013),
https://aclu-wa.org/blog/surveillance-spokane-acts-protect-privacy-and-provide-transparency.
74 Matt Cagle, Alameda County Just Got a Privacy Upgrade – Alameda County, It’s Your Move, ACLU of Northern California
blog, Nov. 17, 2015, https://www.aclunc.org/blog/california-just-got-privacy-upgrade-alameda-county-its-your-move.
75 State of Surveillance in California – Findings and Recommendations, ACLU of California, Jan. 2015, available at
https://www.aclunc.org/sites/default/files/201501-aclu_ca_surveillancetech_summary_and_recommendations.pdf.
76 Seattle City Council, Public Safety, Civil Rights and Technology Committee May 2, 2012, Seattle Channel, at 38:55,
http://www.seattlechannel.org/mayor-and-council/city-council/20122013-public-safety-civil-rights-and-technology-
committee/?videoid=x23397.
77 Terry McFadden, Technology Helping Police to Receive Warrants Faster, WNDU.com (July 8, 2013), http://www.wndu.com/
news/specialreports/headlines/Technology-helping-police-to-receive-search-warrants-faster--214651051.html.
78 18 U.S.C. § 2518(5) (2014).
79 Ohio State Highway Patrol Policy No. OSP-103.29 (revised Dec. 23, 2008).
80 Julia Reynolds, Monterey County Grand Jury Finds Computer Data Risks, Monterey Herald, Aug. 21, 2014, available at
http://www.montereyherald.com/news/ci_26009592/monterey-county-grand-jury-finds-computer-data-risks.
81 Dianne Feinstein, NSA Officers Spy on Love Interests, Wall St. J., Aug. 23, 2013, available at
http://blogs.wsj.com/washwire/2013/08/23/nsa-officers-sometimes-spy-on-love-interests/; Anjali Hemphill, Dating on
Duty: Officers Accused of Screening Dates Using Police System, CBS 13 Sacramento (Aug. 22, 2014),
http://sacramento.cbslocal.com/2014/08/22/dating-on-duty-officers-accused-of-screening-dates-using-police-system/.
82 See Bonnie Eslinger, Menlo Park Council Approves Ordinance Regulating Police Use of Surveillance, San Jose Mercury News,
May 14, 2014, available at http://www.mercurynews.com/breaking-news/ci_25766277/menlo-park-council-approves-
ordinance-regulating-police-use.
83 PERF Report, supra note 24, at 36.
84 Dan Brekke, Oakland Approves Scaled-Back Version of Disputed Surveillance Center, KQED.com, Mar. 5, 2014,
http://ww2.kqed.org/news/2014/03/04/oakland-mayor-jean-quan-suggests-scaling-back-domain-awareness-center.
85 George Hostetter, Former Judge Wanger Writes Far-Ranging Audit on Fresno Video Policing, Fresno Bee, Jan. 7, 2014,
available at http://www.fresnobee.com/2014/01/07/3701754/judge-wanger-delivers-impressive.html.
Back Cover Citations
Editorial, ACLU offers a smart safeguard for using surveillance technology, The Los Angeles Times, Nov. 23, 2014, available
at http://www. latimes.com/opinion/editorials/la-ed-surveillance-and-privacy-20141123-story.html.
Editorial, Bay Area governments must protect citizen privacy, San Francisco Chronicle, Feb. 25, 2015, available
at http://www.sfchronicle. com/opinion/editorials/article/Bay-Area-governments-must-protect-citizen-privacy-
6101993.php.
Steven Greenhut, Surveillance is sneaking its way into cities, The San Diego Union-Tribune, Nov. 17, 2014, available at
http://www.sandiegouniontribune.com/news/2014/nov/17/surveillance-sneaking-cities-model-ordinance-aclu/.
Editorial, ACLU push for surveillance policy is timely, San Jose Mercury News, Nov. 13, 2014, available
at http://www.mercurynews.com/ opinion/ci_26932183/mercury-news-editorial-aclu-push-surveillance-policy-is.
Police are spending billions of
dollars on very sophisticated
and invasive surveillance
technology. Too many of these
programs are moving forward
without public conversation,
careful consideration of the
costs and benefits, or adequate
policies in place to prevent
misuse and protect rights.
This guide provides a step-
by-step framework to
ask and answer the right
questions about surveillance
proposals and build in proper
mechanisms for transparency,
accountability, and oversight.
The guide also includes dozens
of case studies highlighting
smart approaches and missteps
to avoid and model language
for policymakers to adopt to
make sure the right process is
used every time a surveillance
proposal is considered.
“ The ACLU’s approach to vetting new technologies is so
pragmatic that cities, counties and law enforcement
agencies throughout California would be foolish
not to embrace it.”
–Editorial, Los Angeles Times
“ We urge more city and county governments to…[study]
an ordinance that would set specific rules about what
can be done with citizens’ private information.”
–Editorial, San Francisco Chronicle
“ It’s easy to see the value in [ACLU’s] approach—in all
areas of government...“
– Steven Greenhut, San Diego Union-Tribune
“ Elected leaders, not police departments, should set
policy for the use of surveillance equipment. This is the
ACLU recommendation. It’s also common sense. “
–Editorial, San Jose Mercury News