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.
- 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.
- 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.
- Ordinance 124142 should also require all government agencies operating in Seattle to compile and regularly publish statistical information about their use of equipment regulated by this ordinance with at least the level of detail that is currently provided in the annual Wiretap Report publication of the Administrative Office of the United States Courts.
- 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.
- 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.
- Ordinance 124142 must be enforced, and penalties for violation must be specified.