Santa Clara County cracks down on police surveillance technology

In a landmark decision hailed as the first of its kind in the country, the Santa Clara County Board of Supervisors adopted an ordinance last week that would limit the kinds of surveillance technology county law enforcement can purchase, and put into public view the types of spy equipment already in use throughout region.

The board voted 5-0 at the June 7 meeting to adopt the new law, which requires county law enforcement agencies to provide a detailed report on how new and current surveillance technology will be used to investigate and prosecute crimes. Each report will need to justify the use and effectiveness of the technology, and will have to pass public scrutiny at an open meeting prior to use.

County Supervisor Joe Simitian, who has championed the ordinance for the last 18 months, said the county spends millions of dollars on surveillance technology each year, and that residents ought to know basic information about what technology is being purchased, how it will be used and who will have access to that information. The law does not preclude any spy tech from the outset, he said, but it does shift into public view what privacy trade-offs are being made to fight crime.

“It doesn’t prohibit any technology,” Simitian told the Voice. “It simply says that if the county is going to acquire and use surveillance technology, you first have to address the impacts on privacy and civil liberties.”

The ordinance specifically governs county agencies, and does not affect the adoption and use of surveillance technology by local police departments using funding from other sources. The ordinance also does not restrict the sharing of evidence in criminal investigations and prosecutions between agencies that are not restricted by the new requirements. (Read the Weekly’s story on policing surveillance in Palo Alto, “Officials seek to craft regulations for city use of new technologies”).

The law has received national attention since the adoption, in part because the ordinance aims to be as “future-proof” as possible. Existing surveillance technology is called out in the ordinance as examples of what would require approval by the board today, including drones with cameras, automated license-plate readers, closed-circuit cameras and cell-site simulators — more commonly referred to as “StingRay” technology designed to track the location of cellphones.

The ordinance includes a broad definition of surveillance equipment in order to cover future technology that has yet to be created. Any technology used by law enforcement to collect or share audio, electronic, visual, location, thermal, olfactory or similar information would fall under the purview of the law.

“The question is how do you make an ordinance future-proof,” Simitian said. “And you don’t do that by limiting it to a handful of known technologies.”

Under the new law, county law enforcement agencies will need to submit “surveillance use policies” stating the purpose of each technology, what it collects, how it collects the information, who has access to it, how it’s protected and how it’s being retained. These reports will come to the Board of Supervisors, who will ultimately decide whether the benefits of the crime-fighting technology outweigh the loss of privacy, civil liberties and civil rights. The agencies will also have to submit annual reports detailing how the technology was used, whether it was effective and what complaints were received from the community.

The ordinance won praise from privacy advocates including the American Civil Liberties Union and the Electronic Frontier Foundation. Adam Schwartz, a senior staff attorney for the Electronic Frontier Foundation, said the new regulations on surveillance will be a good way to improve the trust between the public and law enforcement, and that it’s important for the supervisors to ultimately decide whether the benefits of new surveillance technology outweigh the costs.

“We believe the decisions about such powerful, transformative technologies ought to be made at the very top,” Schwartz said.

Sameena Usman, the government relations coordinator for the Council on American–Islamic Relations, also supported the ordinance, and said the Muslim community in Santa Clara County is very concerned about the use of technology against congregants at mosques, restaurants and in their own homes. She said there needs to be a transparent process for when and how surveillance technology is going to be acquired and used, which the proposed law provides.

Representatives from county law enforcement were less than thrilled about the ordinance, and continued to oppose it in its current form at the meeting. County Sheriff Laurie Smith said she has concerns about how much paperwork would need to be done in order to adhere to the new law, and described the ordinance as “onerous” and time-consuming. She said there may be unintended consequences if the ordinance encumbers the ability of law enforcement to adopt and use new technology to fight crime.

In a letter to the board, District Attorney Jeff Rosen said he was “acutely” aware of the dangers posed by advanced surveillance equipment, but said the law was too vague and ambiguous in defining what constitutes “surveillance technology.” Assistant District Attorney Brian Welch, who was at the meeting in place of Rosen, called it an “extremely difficult exercise” trying to include future technology in the ordinance, and that it unfortunately led to a far too broad definition of what constitutes spy tech.

“As I look at it now, my assessment is that the definition of surveillance technology is so broad that it encompasses the use of technology that I don’t think anyone would think of as surveillance,” Welch said.

Rosen also called the ordinance a fundamental misunderstanding of what role the Board of Supervisors play in criminal justice, and that it would be beyond the authority of the board to enact the legislation. The District Attorney’s Office requested an independent review of the ordinance by the law group Renne Sloan Holtzman Sakai, which largely agreed with Rosen. The analysis found that while the Board of Supervisors controls the purse strings, it does not have control over how criminal investigations and prosecutions are handled. That power, according to the review, comes from the state, the courts, the sheriff and the district attorney.

“We believe the proposed Ordinance extends far beyond that authority and purports to regulate the investigatory functions of the Sheriff and District Attorney,” the review states.

The county’s legal counsel, however, stated at the June 7 meeting that the ordinance is legally defensible, according to attorney Rob Coelho. He said it is within the right of the supervisors to oversee budgetary items related to surveillance, as well as law enforcement as it relates to investigation and prosecution of crimes. Coelho also said that the violations of the law can amount to a misdemeanor offense, which is typical for county ordinances.

How the new county-wide law will affect local police departments is still unclear. Katie Nelson, a spokeswoman for the Mountain View Police Department, said they are aware of the new ordinance and are still going over how, or if, the changes will affect the department. The department recently rolled out a new body camera policy, along with a detailed seven-page policy on proper use of the devices, and currently have 60 officer-worn cameras in use by all patrol and traffic officers in the city.

At a City Council meeting last November, Police Chief Max Bosel said the Mountain View Police Department currently does not use StingRay technology to track cellphones, but has asked federal law enforcement officials to use similar technologies to assist in detaining a suspect.

The Board of Supervisors preliminarily adopted the ordinance at the June 7 meeting, and is expected to vote on the final adoption on June 21.