How to fix Seattle’s operating surveillance ordinance

by Phil Mocek, Jacob Appelbaum, Jan Bultmann, Allegra Searle-LeBel, and Lee Colleton

We call on City Council to make the following improvements to Ordinance 124142, also known as “the operating surveillance equipment” ordinance, before the end of calendar year 2014.

Close loopholes
  • Ordinance 124142 should be amended to regulate all government agencies operating in Seattle, not merely departments in the city of Seattle.
  • Ordinance 124142 should be amended to tighten or entirely remove the exigent circumstances loophole. There are rarely if ever exigent circumstances involved in the purchase of a large-scale strategic surveillance system. If such exigent circumstances do arise, all such exigent circumstances, equipment purchases, budgets, ongoing relationships, training, and outcomes should be reviewed by City Council.
Reviewing
  • Instead of excluding certain existing data-gathering equipment, Ordinance 124142 should specifically ensure that digital in-car video systems (“dash cams”), automated license plate reader (ALPR) systems, “port security” cameras, and other such data-gathering systems will be reviewed. The ALPR system is the most important of these to receive review, as the use of it amounts to wide-area surveillance of everyone–not simply those people who are suspected of having committed crimes. Systems that gather data on behalf of SDOT, SCL, and SPU should also be covered by the ordinance.
Reporting
Transparency
  • All protocols for use of surveillance equipment must be public.
  • Any and all aspects–even secret ones–of surveillance performed by or commissioned by government agencies in Seattle must include automatic sunset provisions.
  • All property used for communications interception wire rooms or other surveillance (e.g., rentals of houses, vans, etc.) must be accounted for in a budget. When properties are no longer used for such purpose, their addresses must be disclosed. Similarly, the surveillance-related purpose of other expenses must be disclosed after the necessarily-secret nature of their use concludes.
  • The ongoing budget and expenses for surveillance activity funded by City of Seattle must be public during this entire time so that we, the people, can review these expenses and recognize if such activity has spiraled out of control relative to other city priorities.  The public must have the ability to determine if a general area has been under surveillance.
Logging and Sharing
  • All non-SPD contact (eg: FBI, TSA, ICE, SS, any part of DHS, etc) that request assistance, clearance, or notification of surveillance should be logged. Thus, if the FBI is performing a raid of say, your house, the local police don’t accidentally think it is a (different kind of) crime in progress. This already happens, the key is that the log should be audited and not just a matter of coordination.A requirement that any surveillance operations within Seattle must be logged with the Seattle police – thus, the FBI would be required to notify the SPD, even if only for their spying activity.
  • All legal statutes must be cited *during* collection as to why the collection was undertaken in the first place.
  • All electronic surveillance must be logged, including location, equipment type, legal justification and information on the officer(s) involved.
  • All surveillance requests involving any non-SPD agency, company or private individual must be logged. For example, if SPD asks Google for data on Yoga Arts, that request must be logged.
  • The ordinance should specify that all surveillance data or metadata is only for use with the SPD and is not for data sharing with WSIN, the State of Washington, any Federal agency or any other agency, company, or person without a specific court order.
  • A log of all contact made with those under surveillance – that is – each time a person is under surveillance and the collection ends, the person should be notified and it should be logged. A lack of notification should also be logged. This information should become public record automatically and absolutely handed over during a Privacy Act Request (PAR) by the target of surveillance.
  • If there was a sneak-and-peak warrantless search (eg: PATRIOT Act, Section 215) or a search conducted with a sealed warrant, this must be logged specifically as such. It should be logged with a third party that is not the SPD. We’re open to suggestions as to which party is a good one. It seems that the Mayor’s office is probably a reasonable first choice.
  • If during the course of a surveillance operation, a person is in harm’s way and disclosure *could* expose the surveillance operation, the surveillance team has a *duty* to put public safety before secrecy of the specific operation. This is already the case with good Samaritan laws in most states – when we see a person in trouble, we are required by law to help. For better or worse, it should apply to law enforcement and intelligence agencies, even if it would otherwise harm the secrecy of the operation.

Enforcement

  • Ordinance 124142 must be enforced, and penalties for violation must be specified.

2 ways Seattlites can fight back against mass surveillance today

Today we are proud to join thousands of websites around the world in demanding an end to mass surveillance through an Internet-wide digital protest.

Here are two ways to take action right now, one on the federal level and one for the City of Seattle.

1. On the federal level: Tweet to our own Washington State Senator Maria Cantwell asking her to co-sponsor the USA Freedom Act.

Senator Cantwell has a strong record in this area, but a lot of defense dollars pour into this state. She needs cover from her constituents when she goes up against military programs. And quoting Thomas Drake: “If not us, who? If not now, when?”

Senator Cantwell’s official twitter address is @CantwellPress.

Here are a few sample tweets we’ll be sending to Senator Cantwell. Please copy and paste at will, mix and match, or create your own:

  • Bulk domestic surveillance is unconstitutional and violates our Fourth Amendment rights. Please co-sponsor USA Freedom Act.
  • NSA spying costs $53 billion in 2013 & there’s no evidence it’s effective. Please co-sponsor USA Freedom Act.
  • Cost of NSA spying revelations to American business could reach $180 billion by 2016. Please co-sponsor USA Freedom Act.
  • Oppose the bad bill FISA Improvements Act that grants new powers to the NSA. Please co-sponsor USA Freedom Act.

It might also be interesting to quote President Obama, in his January 17 NSA speech, perhaps over a series of tweets:

“But all of us understand that the standards for government surveillance must be higher. Given the unique power of the state, it is not enough for leaders to say: Trust us. We won’t abuse the data we collect. For history has too many examples when that trust has been breached. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power. It depends on the law to constrain those in power.”

2.) On the city level. Send tweets to members of the Seattle Public Safety committee asking them to live up to their oversight responsibilities with regard to Council Bill Number 117996. In last week’s meeting, Councilmember Harrell noted that he didn’t know why his staff had asked him to hold the bill for an extra week of discussion.

We need to make sure he knows.

Here are the twitter addresses for the members of the Seattle Public Safety committee:

@bruceharrell: Councilmember Bruce Harrell, Chair
@NickJLicata: Councilmember Nick Licata, Vice Chair
@sallybagshaw: Councilmember Sally Bagshaw, member
@CouncilmanTim: Councilmember Tim Burgess, alternate

Here are some sample tweets.

  • After Snowden, please don’t rubberstamp federal $$$ for surveillance equipment. No on #CB117996
  • Please vote no on #CB117996. No $$ from DHS for fusion center; surveillance.
  • In addition to NSA surveillance, DHS Is creating a domestic surveillance agency through funding a network of fusion centers.
  • No on #CB117996. Sometimes federal training of local police includes how to falsify chains of evidence. http://t.co/WQij30frEC
  • DHS grants “militarizing the police all over America” https://medium.com/quinn-norton/b9253a123859 …

In addition, here are some questions and issues we have with CB 117996. If you can figure out how to fit these into tweets to the above elected officials, please do! We’ll be working on it too.

The bill funds the whole project of tightening DHS connection with local law enforcement agencies, NOT just the new Booking Photo Comparison System, which is what was discussed at committee and was covered in a recent Crosscut article. Committee members should be discussing ALL aspects of the funding, not just the new addition. For example, we vigorously oppose continued funding of the Washington State Fusion Center.

Next, we have a number of questions about the SPD “policy” presented at the committee meeting:

  • How is a “suspect” defined? What’s to limit what photos will be dumped into the database? Mention was made of a WA DOL facial recognition database — does that mean images from drivers licenses?
  • What’s to prevent usage creep over time? The policy could be changed at anytime without notice to Seattle City Council or the public.
  • Why are the photos used taken from all bookings, rather than from bookings that resulted in convictions? For example, if police conduct mass arrests at protests or demonstrations, do those booking photos become part of a potential pool of false matches to be “further investigated”?

Given the lack of oversight and potential for future change in policy and future misuse of the system (despite the best intentions of the current proponents at SPD), the system could become part of a broader surveillance system in the future. in light of the Snowden revelations about the multiple illegal and unconstitutional domestic surveillance problems deployed against the American people by the NSA, City Council must not rubber-stamp this legislation as if it were the same old thing. Legislation has been introduced in our own state legislature to deny NSA use of state of Washington resources, but the Seattle City Council doesn’t seem to have heard of this issue or understand that it is relevant to local policing in any way. Council should vote down this bill.

Today, at Seattle Privacy, we call for action in memory of Aaron Swartz, 1986-2013.

Too many of America’s best and brightest are in fear, in exile, in jail, or dead because of their belief in the inalienable rights of individuals that this country was founded to defend.

We miss you, Aaron.

 

How Seattle City Council can fix broken Seattle Police oversight

Dear Councilmembers,

We, your constituents, respectfully request that you change your oversight strategy toward the Seattle Police Department in response to the events of 2013, as described below.

Traditionally, the record suggests, Council has treated SPD requests for funding and for entrance into partnerships with other governmental bodies and private companies as innocuous, as business as usual, as more of the same.

This seems an inadequate approach, particularly given the following:

  • Seattle Police Monitor Merrick Bobb’s findings on the willful foot-dragging and noncompliance of SPD leadership
  • The unacceptable state of the SPD’s Information Technology Unit as described in the monitor’s second semiannual report
  • The evident inability or unwillingness of large subsections of the United States Department of Homeland Security, a major granting agency to SPD, to comply with the letter, much less with the spirit, of US law
  • The stealth deployment of DHS-funded drones and surveillance cameras in our city and the farcical show of gathering public feedback that followed
  • Council’s explicit acknowledgement of the need to protect privacy and anonymity via enactment of Ordinance 124142

In light of these developments, we ask that you, our elected representatives, step up the level of scrutiny that you bring to all SPD initiatives.

  • We ask that you adopt a skeptical approach to claims made by SPD staff; that you make it a standard practice to challenge, not to cheer-lead, when engaging in oversight of SPD.
  • We ask that you demand greater detail in the semi-annual reports of the Police Intelligence Auditor, and that you direct the auditor to adopt a more skeptical stance. After reviewing SPD records, he should describe, not simply enumerate, operations involving collection of restricted information, if not while those operations are active, then after their conclusions.
  • We ask that you thoroughly evaluate all proposals emanating from SPD for any potential infringement upon human rights and for noncompliance with Ordinance 124142. Please envision the effects of such proposals as implemented not by those SPD staff whom you know to have the best of intentions, but as implemented by future staff who may have less respect for the policies with which they are expected to comply.

We hope that you will send to SPD a message similar to the following:

Our constituents no longer have the trust in your organization that many of them once had. We have watched with surprise and dismay as your staff are repeatedly found to have acted with disregard for individual privacy and with resistance to institutional transparency. Those days are over. We now intend to oversee your department’s actions with even greater rigor than that with which we oversee other city departments. We will not treat reviews of audits as perfunctory. We will insist on systems that prevent inappropriate use by design, not simply by policy.  We will not authorize the acceptance of federal grants that allow you to operate outside of our oversight.  We will look upon every proposal for new SPD policies or equipment with skepticism.  Our constituents demand it.

Harrell holds DHS grant vote for privacy policy update

We were informed today that item 4, the legislation that would accept a DHS grant for the Seattle Police Department, which we referred to in our previous post, has been dropped from tomorrow’s Public Safety Committee agenda. Here is the information from Committee Chair Councilmember Bruce Harrell’s office:

“Our office just received an email from SPD at 3:19 pm today, 12/3, requesting additional time to engage in further policy discussions with ACLU and other stakeholders and has requested that the legislation be held from the agenda tomorrow. SPD will reintroduce the legislation for consideration once the policy has been finalized.”

We’re glad to see that SPD is responding to the requirements of Ordinance 124142 and drafting a privacy policy for its proposed acquisition of a Booking Comparison System, a likely future component of facial recognition software the department plans to acquire.

Public Safety Committee to discuss DHS grants, fusion centers, facial recognition

The Seattle City Council committee on Public Safety, Civil Rights and Technology will meet this Wednesday, December the 4th at 2:00 p.m. to discuss and possibly vote on several issues including the Seattle Police Department’s involvement in the Department of Homeland Security’s Urban Areas Security Initiative. This is a continuation of the involvement by our local law enforcement with DHS “fusion centers” that have been found by the US Congress to be ineffective and without proper oversight.

Please take a close look at how your tax money is being spent, especially given the revelations of massive warrantless surveillance by the federal government and by the military.

Click here for the agenda and details of the items for discussion.