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High-Tech Policing

April 21, 2017 • Volume 27, Issue 15
Are new surveillance technologies effective and legal?
By Barbara Mantel

Current Situation

Legislatures Weigh In

Lawmakers in Maine and California are considering legislation to make the use of surveillance technology more transparent.

Ten Maine legislators, a mix of Democrats and Republicans, introduced a bill in March that would require “a state entity to hold a public hearing and obtain legislative approval prior to engaging in certain activities relating to the acquisition and use of surveillance technology.”68

And legislative committees in California are considering a bill — introduced last December by two California Democratic state senators — that would require any city or county public agency to provide, at a public hearing, a proposed plan for “the use of each type of surveillance technology and the information collected.”69

The California legislation does not give city and county elected officials veto power over equipment purchases. Nevertheless, it has drawn criticism from law enforcement.

Sheriff's deputy Dave Durbin prepares to fly a drone (AP Photo/Noah Berger)  
Sheriff's deputy Dave Durbin prepares to fly a drone during a demonstration of a search and rescue operation in Dublin, Calif. Police typically use drones, which are equipped with cameras, to document crime scenes, assist SWAT teams and locate suspects. Some cameras also have night vision equipment. More than two-thirds of Americans believe police should be able to use drones to solve crimes. (AP Photo/Noah Berger)

“If we put out there the type of surveillance we use, what data we are collecting, how the surveillance technology is monitored for security … we're really setting it up to expose the utility and the security of [the technology] to those who would seek to defeat it or manipulate it,” said Cory Salzillo, legislative director of the California State Sheriffs' Association.70

Shahid Buttar, director of grassroots advocacy at the Electronic Frontier Foundation, a San Francisco group that champions user privacy and free expression in the digital world, argues the bill would not undermine public safety but instead would provide some transparency. In fact, he says, it doesn't go far enough because it contains too many loopholes.

“If a law enforcement agency wants to propose a new use for an existing technology, it doesn't have to go through the transparency process that the bill requires for new technologies,” he says. In addition, the bill's language might permit nondisclosure agreements that allow the secret use of equipment like cell-site simulators.

“It has a lot of holes, so many in fact that we fear it could become a pathway to legitimizing the use of surveillance technology to monitor communities without … community control over their police departments,” says Buttar.

The Maryland General Assembly is considering creating a taskforce to study how police deploy its surveillance technology. The bill's sponsor, Delegate Charles Sydnor, D-Baltimore, said transparency is important as more departments throughout the state use facial recognition, cell-site simulators and aerial surveillance. “”It seems as if we are moving toward a surveillance state with the type of surveillance used by law enforcement,” he said.

The Maryland Image Repository System, for instance, allows investigators to cross-check digitized images against driver's license photos or police booking photos.71

Cities Seek Oversight

In early March, New York City Democratic City Council members Dan Garodnick and Vanessa Gibson introduced the Public Oversight of Surveillance Technology Act, or POST Act, that they say would remove the shroud of secrecy under which the New York City Police Department (NYPD) surveils residents.

The bill would require the department to display its surveillance policies on its website, explaining the capabilities, rules and guidelines for the use of various surveillance technologies, how the NYPD would safeguard collected data and whether that data would be shared. The police would not have to reveal operational details or get permission from the City Council to purchase technology.72

The NYPD has “quietly amassed” Stingrays, Z Backscatter vans, license-plate readers and a Domain Awareness System “that integrates data from thousands of security cameras, license-plate readers, E-ZPass readers and MetroCard swipes to track New Yorkers' travels,” all without public notice, debate or oversight, the sponsors said. The NYPD shares the data with the FBI-led Joint Terrorism Task Force, which includes representatives from Immigration and Customs Enforcement.73

“The NYPD has a strong capability for surveillance, as they should” in these uncertain times, Garodnick says. But decisions to purchase and deploy new and powerful surveillance technologies should not be made in secret, he says. “Even local elected officials, like me, are kept in the dark about what technologies the NYPD is buying and how they're being used.”

The bill would allow the public and elected officials to comment on the impact and use policy, and the police department could take those comments into consideration.74 Because the policy would include only general information about each technology's capabilities and use, the bill strikes a balance between “significant law enforcement and national security concerns with transparency and democratic accountability,” says Garodnick.

But Police Commissioner James O'Neill said the bill overreaches and “would not be helpful to anyone in New York City.” Defenders of New York's robust surveillance capabilities also note that the city is a popular terrorist target, most horrifically on Sept. 11, 2001, when terrorists crashed two jetliners into the World Trade Center, destroying the two towers. Larry Byrne, NYPD's deputy commissioner for legal affairs, said Garodnick's bill would be a boon to terrorists, who would love to know the NYPD's surveillance technologies.75

That latter argument drew a retort from Jim Bueermann, retired police chief in Redlands, Calif., and president of the Police Foundation, a research and police training organization in Washington. “Dude, don't you think terrorists know all about these technologies?” he says. “I don't know why anyone would object to this. Getting community input is one of the underpinnings of community policing.”

Seventeen other cities and counties have introduced similar measures, and some give elected officials the right to approve or reject each type of surveillance technology. The cities include Oakland, Palo Alto, Fresno, Santa Rosa and Santa Cruz, all in California, as well as Cambridge, Mass., and Providence, R.I.

Last year, Santa Clara County, Calif., which encompasses Silicon Valley, passed a surveillance oversight ordinance giving the Board of Supervisors veto power over county agencies' surveillance technology purchases. Agencies now must develop board-approved use policies that protect civil rights and civil liberties. Agencies also must send annual reports to the board on how they are using the surveillance equipment.

“The legislative veto is key. It gives legislation some teeth,” says Buttar of the Electronic Frontier Foundation. “New York City's POST Act unfortunately does not have a veto, but we do support it.” New York state law doesn't permit such a veto, Buttar adds.

Regulating Technologies

A number of states have enacted technology-specific laws, creating a nationwide patchwork of regulations. As of February, at least 13 states have laws regulating the use of license-plate readers or the retention of the data they collect, according to the National Conference of State Legislatures.

The laws typically specify how long the data can be stored — from three minutes in New Hampshire to three years in Colorado; whether it can be shared with the public; which kinds of law enforcement officers can access the data; and how they can use it.

None of the state laws require the kind of public scrutiny and oversight mandated by Santa Clara County's more general measure and others like it, and they don't give local governments veto power over use of the equipment.76

Thirty-two states and Washington, D.C., have laws governing body cameras as of August, according to the National Conference of State Legislatures. Again, the laws don't give local governments veto power over camera use or require periodic public hearings. Instead, they deal with issues such as where body cameras can be used, whether officers need to notify people that the cameras are turned on and whether the footage is exempt from state laws requiring the release of records to the public, says the Urban Institute's La Vigne.77

According to La Vigne, several notable trends are emerging. States have begun to recognize the complex issues around body cameras and several have initiated pilot studies. And while most state laws “dictate when cameras should be turned on, more recent legislation dictates when they should be turned off,” she wrote. In addition, some states, such as Oklahoma, are mandating the release of footage in high-profile cases, recognizing the growing public demand to view such video.78

Nevertheless, local law enforcement agencies in many of these states still have wiggle room to develop their own body camera policies, says La Vigne. “State laws are not very prescriptive on camera use, with the exception of ‘reasonable expectation of privacy’ and a few recent state laws that prohibit body camera use in schools and hospital settings,” she says.

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[68] “An Act To Promote Transparency with Respect to Surveillance Technology,” Maine Legislature, p. 3, http://tinyurl.com/mzs329t; “Actions for LD 823,” Maine Legislature, http://tinyurl.com/k6kumnm.

Footnote:
68. “An Act To Promote Transparency with Respect to Surveillance Technology,” Maine Legislature, p. 3, http://tinyurl.com/mzs329t; “Actions for LD 823,” Maine Legislature, http://tinyurl.com/k6kumnm.

[69] “California Senate Bill 21,” http://tinyurl.com/z9tv448.

Footnote:
69. “California Senate Bill 21,” http://tinyurl.com/z9tv448.

[70] “California, NYC Lawmakers Seek to Reveal Police Surveillance,” Communications Daily, March 15, 2017, http://tinyurl.com/kacnksu.

Footnote:
70. “California, NYC Lawmakers Seek to Reveal Police Surveillance,” Communications Daily, March 15, 2017, http://tinyurl.com/kacnksu.

[71] Carrie Snurr, “Legislation creates task force to study surveillance tactics,” The Associated Press, The Washington Post, April 7, 2017, http://tinyurl.com/m9g9jzz.

Footnote:
71. Carrie Snurr, “Legislation creates task force to study surveillance tactics,” The Associated Press, The Washington Post, April 7, 2017, http://tinyurl.com/m9g9jzz.

[72] “Creating comprehensive reporting and oversight of NYPD surveillance technologies,” The New York City Council, Introduced March 1, 2017, http://tinyurl.com/l6m4cdy.

Footnote:
72. “Creating comprehensive reporting and oversight of NYPD surveillance technologies,” The New York City Council, Introduced March 1, 2017, http://tinyurl.com/l6m4cdy.

[73] “Public Oversight of Surveillance Technology (POST) Act: Fact Sheet,” Brennan Center for Justice, http://tinyurl.com/m2ulvy4.

Footnote:
73. “Public Oversight of Surveillance Technology (POST) Act: Fact Sheet,” Brennan Center for Justice, http://tinyurl.com/m2ulvy4.

[74] “Creating comprehensive reporting and oversight of NYPD surveillance technologies,” op. cit.

Footnote:
74. “Creating comprehensive reporting and oversight of NYPD surveillance technologies,” op. cit.

[75] Noah Hurowitz, “NYPD Blasts Surveillance Transparency Bill as a Boon to ‘Terrorists,’” DNAinfo, March 2, 2017, http://tinyurl.com/l7vluna.

Footnote:
75. Noah Hurowitz, “NYPD Blasts Surveillance Transparency Bill as a Boon to ‘Terrorists,’” DNAinfo, March 2, 2017, http://tinyurl.com/l7vluna.

[76] Shahid Buttar, “A California County Breaks New Ground for Surveillance Transparency,” Electronic Frontier Foundation, June 15, 2016, http://tinyurl.com/hhq5ycl.

Footnote:
76. Shahid Buttar, “A California County Breaks New Ground for Surveillance Transparency,” Electronic Frontier Foundation, June 15, 2016, http://tinyurl.com/hhq5ycl.

[77] “Automated license plate readers: State statutes regulating their use,” National Conference of State Legislatures, Feb. 27, 2017, http://tinyurl.com/lxbxobc.

Footnote:
77. “Automated license plate readers: State statutes regulating their use,” National Conference of State Legislatures, Feb. 27, 2017, http://tinyurl.com/lxbxobc.

[78] “Body-worn cameras interactive graphic,” National Conference of State Legislatures, Aug. 30, 2016, http://tinyurl.com/kjwnx89.

Footnote:
78. “Body-worn cameras interactive graphic,” National Conference of State Legislatures, Aug. 30, 2016, http://tinyurl.com/kjwnx89.



Document APA Citation — See Alternate Citation Style
Mantel, B. (2017, April 21). High-tech policing. CQ researcher, 27, 337-360. Retrieved from http://library.cqpress.com/
Document ID: cqresrre2017042105
Document URL: http://library.cqpress.com/cqresearcher/cqresrre2017042105
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BROWSE RELATED TOPICS:
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Criminal Law Procedure and Due Process
Privacy
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