The Edward Snowden revelations shined a spotlight on the NSA and stirred up widespread outrage over warrantless surveillance. But Congress did nothing.

In fact, it has extended surveillance “authority” and given federal agencies even more leeway to spy on Americans. But while D.C. politicians have shown little willingness rein in the ever-expanding surveillance state, activists have had more success addressing the issue at the local level.

Earlier this month, the Oakland, California, City Council gave final approval to a local ordinance that sets the stage to limit the acquisition and use of spy gear by law enforcement and other city agencies. Activists called it the strongest such ordinance in the country, saying it gives “Oakland communities the power to understand the technologies that are being proposed in the city and to have a voice in saying if, when and how surveillance is used in the city.”

The new ordinance ensures there will be public notice and debate before the city acquires or uses surveillance technology. Specifically, the new law requires all city entities to seek city council approval before purchasing or using any new surveillance technology or equipment, and before accepting grant funds for such gear. The new law creates a multi-step process. City agencies, including police, must submit a “surveillance use policy” to the Privacy Advisory Commission for consideration. The city council must then adopt the approved policy the technology can be purchased or operated. The ordinance includes specific criteria the city council must consider in order to determine if the benefits of the technology outweigh the costs.

Oakland is the latest city government to pass such an ordinance, but not the first. In fact, there is a growing movement some have dubbed “privacy localism.” A similar ordinance passed in Santa Clara County in 2016.

Berkeley and Davis approved similar measures recently. These ordinances were based on model legislation developed by the ACLU with input from the Tenth Amendment Center. These are just a few of the municipalities that have introduced measures as part of the #TakeCTRL initiative. And it’s not just happening in California. Nashville, Tenn., Seattle, Wash., and Somerville, Mass., now have ordinances requiring local government approval for surveillance technology on the books. According to the ACLU, at least 19 other municipalities are considering measures based on this model.

These ordinances take an important first step toward limiting surveillance by establishing oversight and transparency. As Slate pointed out, evidence shows that public notice and the resulting input from residents can slow the proliferation of surveillance technology.

“Even where no privacy commissions have been established and no ordinances have been passed, municipalities have demonstrated the value of offering opportunities for public input around surveillance tech. For example, San Pablo and Alameda City Councils in California canceled their planned expansions of automatic license plate readers after holding public meetings in which residents raised concerns. Similarly, New Orleans recently ended its relationship with predictive policing vendor Palantir. That came in response to public outrage just two weeks after the Verge broke the story that its police department had been secretly using Palantir’s tech for six years without even the city council knowing.”

The Electronic Frontier Foundation (EFF) supports the movement to rein in surveillance through local efforts, noting that the federal government has effectively “commandeered” the surveillance programs of state and local governments.

A bill moving through the California legislature would mandate a similar process of local government approval throughout the state. SB1186 would require a local law enforcement agency to draft a Surveillance Use Policy for each type of surveillance technology it operates and the information collected. It would then have to submit the policy to its governing body for approval at a regularly scheduled hearing, open to the public. 

If the plan is not adopted, the law enforcement agency would be required to cease using all surveillance technology within 30 days. The proposed law would require law enforcement agencies to amend their use policies for any new surveillance technology they acquire in the future, subject to the same approval requirements. Without approval, the agency could not use the new technology. 

Local police have access to a mind-boggling array of surveillance equipment. As it now stands, many law enforcement agencies can obtain this high-tech, extremely intrusive technology without any approval or oversight. As Slate pointed out, it amounts to “policymaking by procurement“, a situation in which “important decisions being made about police power based simply on the fact that the feds were willing to cut a check for the tech, rather than being based on careful consideration by local elected officials.”

The federal government facilitates local surveillance through grants and other funding sources for this spy-gear, meaning local governments can keep their purchase “off the books.” Members of the community, and even elected officials, often don’t know their police departments possess technology capable of sweeping up electronic data, phone calls and location information.

In some cases, the feds even require law enforcement agencies to sign non-disclosure agreements, wrapping surveillance programs in an even darker shroud of secrecy. We know for a fact the FBI required the Baltimore Police Department to sign such an agreement when it obtained stingray technology. This policy of nondisclosure even extends to the courtroom, with the feds actually instructing prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported, a Baltimore detective refused to answer questions about the department’s use of stingray devices on the stand during a trial, citing a federal nondisclosure agreement.

As put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”

Ordinances based on the TakeCTRL model create a framework of oversight and transparency for surveillance programs. They also set the stage to limit surveillance by giving residents input into the process and allowing them to oppose and stop the purchase of spy-gear.

Impact on Federal Surveillance

Passage of local ordinances not only protects the privacy of people in that area. They also undermine the federal surveillance state. The federal government funds much of the surveillance technology acquired by state and local law enforcement. In return, federal agencies tap into the data swept up by these agencies through information sharing agreements and fusion centers. Information gathered by your local police department often ends up permanently stored in federal databases. These create the backbone of the federal surveillance state.

The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, local data collection using ALPRs, stingrays and other technologies create the potential for the federal government to track the movement of millions of Americans, and obtain and store information on millions of Americans, including phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

By facilitating local surveillance, the federal government undoubtedly gains access to a massive data pool on Americans without having to expend the resources to collect the information itself. By requiring approval and placing the acquisition of spy gear in the public spotlight, local governments can take the first step toward limiting the surveillance state at both the local and national level.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. This represents a major blow to the surveillance state and a win for privacy.

Passage of an ordinance in one locality may not seem significant. But when multiplied over hundreds of cities and counties across the United States, this strategy could seriously undermine federal surveillance programs. If local police can’t collect and share the data, it cannot end up in federal databases.

Mike Maharrey

The 10th Amendment

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