Citing Stranger Reporting, Council Members Seek to Strengthen Police Intelligence Ordinance

Seattle Channel

Council member Bruce Harrell admits Seattle's intelligence auditing process needs more scrutiny than it's been given.

For at least the past three years, the submission of semi-annual reports by the Seattle police intelligence auditor to the Seattle City Council has been a slap-dash, perfunctory process, at best. The reports—which are meant to verify that police are not spying on political activists—were usually presented to the council's public safety committee without the auditor present and approved within a few minutes, often with no questions asked.

Yesterday, a council hearing was held to look into the intelligence auditing process. It lasted for about one hour. "Perhaps this procedure... has not been scrutinized as thoroughly as it could be," said committee chair Bruce Harrell, at the outset. "And I'll be the first to admit that." (Video here.)

Harrell was joined by Council members Sally Bagshaw and Kshama Sawant. Seated opposite them were David Boerner, a law professor who volunteers as Seattle's police intelligence auditor; Seattle police criminal intelligence commander Eric Barden; Mark Baird from the council's central staff; and senior SPD counsel Brian Maxey.

So, what did we learn?

Boerner confirmed, throughout the questioning, what he's already indicated: he is not technologically-savvy; he reviews a "relatively small percentage" of the intelligence unit's files via a sampling method (a method that, as it was described it 2013, involves the police choosing the sample); and he believes SPD has complied with the ordinance "without exception" over the past ten years, since his appointment in 2005.

He also made clear that he only reviews files from investigations in which SPD has asked for "authorizations" required by the intelligence ordinance. These authorizations, under the ordinance's restrictions, allow police to collect and retain intelligence on citizens' political and religious affiliations, or sexual orientation, only when there is a nexus with criminal activity that is occurring—or potential crimes, in Boerner's view.

"That almost gives them the green light to always keep it, because they can always justify that someone could engage in unlawful activity in the future," Harrell said. "How do we audit or verify that they are seeking authorizations every time [they should]?"

"I don't know how one would do that, unless someone were to station a person in the unit 24/7," Boerner responded.

Ansel Herz

On December 8, a senior photographer for the Seattle Police Department snapped pictures of a small crowd of peaceful protesters.

Sawant asked Boerner if he's able to examine electronic case files on SPD computers. "I would have access," he said. "I have not done that."

He suggested that if the city wants an auditor to inspect the files, it should find a different auditor—a forensic auditor with technical expertise.

That seemed to interest both Sawant and Harrell. "Perhaps this is a question of revising the whole ordinance, and putting in a forensic component to make it a real audit," said Sawant.

"Let's see what a forensic audit may look like," Harrell said.

In addition, Harrell said he wants to strengthen the intelligence ordinance itself and update it to address today's technology and privacy concerns. "Through the work of The Stranger newspaper and some investigative journalism, we've come to look at this," he said. "We want to see if that process should be ramped up."

"We have to make sure," Harrell continued, "it's not a trust situation—that we have a good audit to protect people's right to privacy."

But when it comes to recent protests in which SPD has photographed peaceful demonstrators, all we can do for now is trust that police deleted the photographs they took—within five days of taking them, per the ordinance's requirements.

"It's my understanding that no criminal activity occurred and the information was purged," Boerner told Sawant in response to her questions about surveillance on the night of December 3, when protesters at U-Village walked around and chanted to protest the killing of Mike Brown.

Boerner told me afterwards he hasn't verified this himself—there's no record of the photographs having been taken in the first place, or of their erasure. A public records request I filed seeking whatever information police collected at that protest turned up no photographs or video.

Already, though, progress has been made on this front. During the last few weeks, SPD's Lieutenant Barden told me, a discussion with Chief Kathleen O'Toole resulted in a decision to begin keeping logs of such photo deletions. He wouldn't be more specific about the timeframe, except to say that the logging is already happening, and that the logs would be available to the auditor from now on.

Sawant made one other key point during the council briefing which is worth emphasizing. "Whether or not that information is purged later, it has a chilling impact," she said. "That's the more important point here."

This is the same thing that Michael Price, a lawyer with the New York-based Brennan Center for Justice, told me last month when I asked him to weigh in on Seattle's auditing process. "It's that act of... photographing protesters that sends the message that they're being watched," he said, "and that can put some people off from expressing their political beliefs."

Finally, there's the question of Boerner himself, who says he believed, when he was appointed in 2005 by Mayor Greg Nickels, that the position of intelligence auditor was one he would hold "indefinitely." In fact, he was only appointed to a three-year term, which happened to escape the notice of subsequent mayoral administrations and the City Council.

Mohawk Kuzma, one of the organizers of recent protests around Ferguson and police brutality, was on hand to watch the council question Boerner. He believes it's time for the city to appoint a new auditor. "The auditor should be voted out," Kuzma said. "He's not up to the job. They didn't even recognize that he was there [for all those years]. No one deserves to be profiled because they are involved in activism."

Local privacy activist Phil Mocek said: "He's tasked with monitoring compliance with an ordinance that was written decades ago." Boerner's made an honest effort, Mocek believes, "but I'm still concerned he doesn't approach it with an appropriate level of skepticism."