SACRAMENTO, Calif. (Sept 5, 2017) – Last week, a bill that would have required all law enforcement agencies in the state to get local government approval before acquiring or using surveillance technology died in a California Assembly committee – at least for this year. Passage of the bill would have taken the first step toward limiting the unchecked use of surveillance technologies that violate basic privacy rights and feed into a broader national surveillance state.

Sen. Jerry Hill (D-San Mateo) and Sen. Steven Bradford (D-Inglewood) introduced Senate Bill 21 (SB21) earlier this year. The legislation would have required law enforcement agencies to propose a Surveillance Use Policy for each type of surveillance technology it operates and the information collected. It would then have had to submit the policy to its governing body for approval at a regularly scheduled hearing, open to the public. If the governing body failed to approve the plan, the law enforcement agency would have been required to cease using the surveillance technology within 30 days. The proposed law would have 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.

SB21 was held in the Assembly Appropriations committee after a hearing on Sept. 1. Activists in California working to pass the legislation say the bill is dead for the year and will not receive a committee vote. There is some indication lack of support from Gov. Jerry Brown was a factor in killing SB21. There was also significant opposition from law enforcement interests throughout the process. Police have fought to kill the legislation from the beginning.

SB21 had marched through the process despite the opposition. It had passed the Assembly Privacy and Consumer Protection Committee by a 6-3 vote and cleared the Assembly Public Safety Committee by a 4-2 vote. It previously passed the Senate by a 21-15 margin in May.

Supporters of the bill in the legislature have already indicated they plan to push the legislation again next year. The California legislature has 2-year sessions.

A coalition of organizations coalesced in support of SB21, including the ACLU of California, Media Alliance, the Electronic Frontier Foundation (EFF) and the Tenth Amendment Center.

As noted by the Electronic Frontier Foundation (EFF):

Access

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. The federal government often provides 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 privacysos.org 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.”

SB21 would have prevented local police in California from obtaining technology without public knowledge, and would have provided an avenue for concerned residents to oppose and stop the purchase of spy gear.

Impact on Federal Programs

Information collected by local law enforcement undoubtedly ends up in federal databases. 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.

The federal government encourages and funds surveillance technology including ALPRs, drones and stingrays at the state and local level across the U.S.. In return, it 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.

SB21 would have taken an important first step toward limiting the use of surveillance technology by addressing it at the local level.