By JP Massar

Groundbreaking legislation that will put limits upon the local surveillance state is up for consideration in the Bay Area these next few months. With a new administration being handed the vast resource of existing Federal surveillance capabilities, it is more crucial than ever that localities understand what their police are doing in this regard and take measures to protect the civil liberties of the people.

On January 24th, the Oakland City Council Public Safety Committee had before it a ‘use and privacy policy’ (tinyurl.com/hw2t7ez) for Cell Site Simulators (aka Stingrays) – devices which can track your cellphone and, if configured to do so, snoop on your communications.

The Public Safety Committee voted unanimously to approve the policy, sending it on to the full Oakland City Council. This is an example of a policy that should be in place for all surveillance equipment, and civil liberties groups around the Bay are working towards that end. To wit:

The Bart Board of Directors is scheduling consideration of a Surveillance Equipment Regulation Ordinance (tinyurl.com/zgzh558). This ‘meta-ordinance’ mandates that all surveillance equipment – including Cell Site Simulators – be acquired through a public process. Use and privacy policies vetted in public must be in place before deployment for all such equipment, and a cost/benefit and civil liberties analysis done beforehand. The ordinance would also require yearly audits of equipment use, publicly available.

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This would be similar to a proposed ordinance which the Oakland Privacy Advisory Commission passed several weeks ago (tinyurl.com/zfwc235) for consideration by the Oakland City Council next month.

Berkeley is also in the beginning stages of considering its own Surveillance Equipment Regulation Ordinance. Santa Clara County adopted the first such ordinance of its kind in the nation about a

year ago.

The Cell Site Simulator use and privacy policy Oakland’s Public Safety Committee considered was crafted by the Oakland Privacy Advisory Commission and is likely the strongest such policy in the nation. It’s significantly stronger than existing state laws such as one Illinois passed six months ago (tinyurl.com/hybkmzu), and it’s not clear if there are any other, local, publicly vetted policies in place putting real limitations on the use of these devices – devices which gained notoriety in the last couple of years for their indiscriminant deployment (tinyurl.com/mpu286h).

As proposed, the policy says a Cell Site Simulator:

1. can never be used to intercept content, only to locate a cell phone;
2. can only be used with a warrant, or in an emergency for 48 hours before obtaining a warrant;
3. can only be used for certain, delineated purposes. The allowed purposes are to locate a missing person or at-risk individual, assist in investigations involving danger to the life or physical safety of an individual, or to apprehend known fugitives. They cannot be used in a “dragnet” operation; the cell phone to be located must be known in advance.

In addition a log of each use must be maintained, and an annual report detailing usage statistics, locations of deployment and costs must be compiled.

Would the world be better off without such powerful technologies? Would we be safer if the police could use surveillance without limits? Or is there a middle, accepting that surveillance technology will not just go away and will inevitably become more sophisticated?  Is there a middle, knowing that the power to watch, unchecked, inevitably corrupts the watcher and demeans those surveilled?

Oakland Privacy, which has worked hard since the defeat of the Domain Awareness Center in 2014 promoting privacy and surveillance restrictions, suggests that such a middle needs to exist, because the consequence otherwise is not no surveillance state, but rather unfettered government – and big business – access to everything we say and do.

Oakland, Berkeley and BART should pass these ordinances. By opening up the process of acquiring surveillance equipment to public scrutiny, we hope that tradeoffs will be analyzed and consequences of surveillance discussed, so that the people – not the NSA, not Donald Trump, and not your local police – can draw the lines.

JP Massar is a member of the Oakland Privacy Working Group.

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