Advocacy and Policy Counsel, American Civil Liberties Union. Written for CQ Researcher, April 2017
Throughout America, police have acquired advanced surveillance technologies and trained them on communities of color and other unjustly targeted groups, from Muslims to political activists.
Not surprisingly then, as the local use of surveillance technologies continues to increase, so have questions about what limits should be placed on their use, or if they should even be used at all.
But in most U.S. cities, when it comes to acquiring and using surveillance technologies, public concern is irrelevant. So are the concerns of elected officials. The only stakeholder with a voice in the matter is the local police department, and when it decides to use surveillance technologies, it generally keeps those decisions secret.
Modern surveillance technologies now enable the police to monitor tens of thousands of people at a time. Considering that these technologies have the broad ability to undermine civil liberties, and have been used to do so in the past, allowing police to secretly make decisions about their use with no public knowledge or input not only is unwise, it also is dangerous to our democracy.
Fortunately, an effort to change that is underway in 17 cities. The effort, called Community Control Over Police Surveillance (CCOPS), seeks to modify local laws to require open hearings and city council approval before any surveillance technologies are used or their data are shared with others entities.
Moreover, when approvals are sought, CCOPS' laws require the public to receive information about how the technologies work and what safeguards will be implemented to protect civil rights and liberties. The laws also include annual reporting requirements, so inappropriate uses can be quickly identified and corrected.
To counter such efforts, law enforcement likes to try to scare the public by creating a false choice between liberty and security. They tell the public that open hearings will let the “bad guys” know how law enforcement is watching them, but in truth, most police surveillance technologies can be purchased or researched online.
They also tell us that secrecy is needed so “terrorists” won't learn about our methods for preventing attacks. In reality, terrorists are well aware we are spying on them.
Surveillance technologies may have some beneficial purposes. Or maybe they don't. Ultimately, it should be up to the people and their elected representatives to make that call.
Board Member, National District Attorneys Association. Written for CQ Researcher, April 2017
In the past few years some well-meaning, if ill-informed, activists have urged and sometimes persuaded city governments to require that any use of what they call police “surveillance” be approved by the city council or governing municipal board.
The concerns are not entirely unreasonable, given that more than 40 years ago the federal government ran a highly illegal intelligence operation known an COINTELPRO. Its function was to infiltrate and often destabilize groups who strongly disagreed with government policies. But the key word in that description is “illegal,” and eventually people were fired and Sen. Frank Church, D-Idaho, presided over extensive hearings on the program.
Local police should not be tapping into people's phones, hacking their computers or using spy-like technology, at least not without a search warrant issued by a judge. But a reality check is necessary.
Police agencies in America simply do not have access to National Security Agency spy technology, nor should they.
Another reasonable question has to be, “What constitutes surveillance?” Is reading a public Facebook page “snooping”? The American Civil Liberties Union (ACLU) has argued, with some success, that using the noses of dogs or even simple binoculars constitutes a “search” under the Fourth Amendment ban on unreasonable searches.
Beyond that, many intelligence agencies are so siloed that it is often impossible for them to share information, as we saw in the wake of 9/11.
But groups like the ACLU have convinced a few cities, such as Portland, Ore., and San Francisco, to drop out entirely of the Joint Terrorism Task Forces that have allowed a few local police to obtain security clearances and share information with their federal counterparts. The tragic murders in San Bernardino, Calif., in 2015 show that there are very real reasons police sometimes need to know about potential terrorist threats.
Those who demand that accountability lie only with a group of city councilors, none of whom likely have any law enforcement background or the interest or capability to get a security clearance, are ignoring an important fact.
The vast majority of chief prosecutors and sheriffs in America are elected, and if voters think they are overstepping the bounds of propriety, recent elections have shown they are not the least bit afraid to throw them out of office.