Two council members and the mayor are asking the city to limit the amount and type of arrest information released to the public. First Amendment experts say it’s a slippery slope.

Two Berkeley City Council members and the mayor are asking the city to limit the amount and type of arrest information released to the public after the Berkeley Police Department faced criticism for using Twitter to share arrest updates, including booking photographs, in August.

See an update from the council meeting immediately following this story.

Berkeley Police Chief Andrew Greenwood said he was surprised at the public response in August, as it was the fifth time the city has released protest arrest information and photos on Twitter. (The other four instances took place during protests in September 2017.)

Councilwomen Cheryl Davila and Kate Harrison put forward an agenda item — set for the Sept. 13 Berkeley City Council meeting* — asking police not to release booking photos on social media, other than in circumstances of “immediate threat.” In the most recent version of the proposal, Mayor Jesse Arreguín has signed on in support.

The trio has also asked, more broadly, that the city, “resist PRA [Public Records Act] requests for arrest photos and identifying information on individuals that have been arrested when doing so poses a risk to their safety as a result of threats against them and when doing so provide no public safety value.”

First Amendment experts expressed concerns about the proposal this week, and said it does not seem to factor the overall public interest into the equation — while putting the government in the position of determining “public safety value” without any particular criteria.

“The loose, subjective language of this proposal, authorizing anonymous arrests for the arrestees’ own good based on ‘threats’ to their safety when disclosure would have ‘no public safety value’ raises the immediate questions of Who Decides, and on the basis of what evidence?” said Terry Francke, general counsel for Californians Aware, a nonprofit focused on government accountability.

If approved, the proposal would direct the city manager to develop a new law that would limit what information BPD could release about individuals “unless they pose an immediate threat to the public safety of the Berkeley community.” That could include “persons wanted for serial rape, homicide, or felony assault.”

Proposal advocates say the change is needed because the release of arrest information Aug. 5 “contributed to ‘doxing’ people – publishing personal information to be used to harass and threaten people at their homes and places of work” because Fox news and other outlets picked up the information.

The proposal alleges that “Doxing has resulted in threats to people’s children and families, and even putting ‘bounties’ on their heads.… People whose names were released are receiving threatening phone calls at work and home, postings and emails.” No specific evidence was included in the proposal to support the allegations.

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The Aug. 5 protest in Berkeley resulted in 20 arrests and property damage that included $15,000 in vandalism and arson to 21 city vehicles, the city has reported. Staffing and other costs added up to $154,000, including $124,000 for personnel.

“A truck laden with shields was towed when the occupants were taken into custody. Multiple weapons were confiscated including weapons hidden in large banners. Again, we observed a tactic where counterprotesters surrounded opponents with banners obscuring vision while counter-protesters kicked and punched opponents through the banner. Targeted arrests were made for weapons violations,” police wrote in a report released Wednesday.

Police estimated that 100-150 people carrying weapons were part of a crowd of 500-1,000 that marched through Berkeley that day, attempting to reach a much smaller “No to Marxism” event at Civic Center Park. The bulk of the arrests were for alleged weapons and municipal code violations, while others were for battery, masks, resisting arrest, vandalism and “riot,” BPD has reported.

In a letter attached to the council proposal, the Bay Area chapter of the National Lawyers Guild says the list of banned items used to justify arrests Aug. 5 was overly broad, and that at least four of the people who were arrested will face no charges.

“The danger and harm created by BPD’s publication of booking information is immediate and non-speculative. Such information can and will be used to facilitate criminal activity against the activists,” the organization wrote. “The anti-racist activists’ safety is endangered by BPD’s knowing violation of their privacy.… We call on the BPD to immediately cease and desist from such publication and refrain from such publicity in the future.”

(The group also says all the Aug. 5 arrestees are “anti-racist activists.” The city has said it cannot confirm this because it does not arrest on the basis of political views or track that type of information.)

Complicating the situation is the fact that Berkeley police generally do not release booking photos at all — let alone on Twitter.

David Snyder, a lawyer and journalist who now runs the First Amendment Coalition, said he could sympathize with those who feel that releasing booking photos only during protests could be an attempt to chill First Amendment activity.

Snyder said the best solution, however, would be for Berkeley police to release all booking photos across the board. He said that gives the public the best chance at keeping tabs on the agency’s approach to policing and who is being arrested.

He said the council proposal seemed to leave out, for the most part, the reason arrest information is public in the first place: to allow people to monitor what a police department is doing and to whom. That information allows the public to weigh in if policy changes are needed.

“If it’s difficult to know who the police are arresting and when, it’s more difficult to monitor a police department and hold it accountable,” he said. Snyder also noted that the requirement to release arrest information harkens back to “the ancient idea of habeas corpus“: which requires the state to give anyone who is arrested a public hearing. “You don’t want police departments arresting people in secret. I’m not suggesting it’s secret if they don’t broadcast it but, as a general matter, the more transparency you have in the process of what the police department does, the better off everybody is.”

The council report is brief and may contradict itself in places: While the introductory two-page report proposes broad limitations on arrest information release, the resolution itself includes language related to the “special circumstances of civil conflicts.” The focus of the proposal will likely become clearer at Thursday’s meeting.

The Berkeley Police Department already has a somewhat challenged approach to information release at times. Until Berkeleyside lobbied for the resource several years ago, the city produced no public booking log of those taken into custody. (It is now published as part of the city’s open data portal.) The department publishes no regular blotter of police activity, which is a common feature produced by many other law enforcement agencies.

Neither BPD nor the city has used social media platforms such as Facebook and Twitter to release information on a regular basis, opting instead for tools like Nixle to push out text and email alerts. The alerts tend to be focused on public service and event announcements rather than the report of crime trends or individual arrests. The proactive release of arrest information by the department has been exceedingly rare in recent years.

Some of the limitations seem to be at odds with existing police policies regarding the release of photographs, police reports and other information. Police Chief Greenwood said that policy is nearly a decade old and should be updated, particularly to take social media into account.

Though the policies allow for the release of booking photos, for example, Greenwood acknowledged that BPD does not generally do it.

“The default tends to be a ‘no,'” he said. “We’re strong in our culture here about not releasing information.”

Greenwood said it’s his sense that withholding booking photos is largely in line with public sentiment: “There’s a strong sense from community members who support us that there are concerns about privacy. Generally, I don’t see us publishing booking photos in general as a plus.”

But he said that doesn’t mean he’s in favor of the council proposal coming up Thursday night.

“We need to have the ability to be flexible in our strategies and our tactics on a case-by-case basis,” he said. “A broad ban takes away our ability to be agile and nuanced in our approach.”

City spokesman Matthai Chakko said releasing booking photos on Twitter during protests is justified because they are “exceptional circumstances.” And he said the city goes through a rigorous vetting process to ensure accurate information is released. Part of what creates the special circumstance, he said, is the broader narrative that fringe groups have created during a series of rallies and protests in Berkeley over the past two years.

“Berkeley has been the focus of an unprecedented social media-driven narrative that seeks to create and posture violence in our city,” he said. “Fringe groups have fomented that narrative as a way to justify the use of weapons, armor and violence in Berkeley. These violent agitators use video and photography at these events to further the narrative of conflict and the story that there are no laws enforced in Berkeley. The city’s ability to counter that narrative is dependent on the use of social media to emphasize key messages on the medium where the narrative is being fueled.”

“The publishing of photos that we verify is one tool we use,” Chakko continued. “Our officers are putting themselves out on the line to keep people safe. This is just one element we use to grapple with the narrative.”

* This week’s Berkeley City Council was moved to Thursday, Sept. 13. The time and location remain the same. The meeting begins at 6 p.m. in Council Chambers at 2134 Martin Luther King Jr. Way. See the full agenda on the city website. Watch the meeting online.