Public Comment

Titles Titilate, Content Defies, Left Bamboozled: the protracted rocky ride of Berkeley's Surveillance Ordinance

Jane Welford-Executive Secretary for SuperBOLD (Berkeleyans Organizing for Liberty Defense)
Gene Bernardi-Representative for Veterans For Peace East Bay Chapter 162
Saturday April 14, 2018 - 10:16:00 AM

Do the titles Surveillance Ordinance or Police Accountability arouse your interest? 

Many Civil Rights groups and First and Fourth Amendment buffs interests were aroused. Last Fall twenty-seven (27) organizations endorsed Berkeley's proposed Surveillance Use...Ordinance. (Similarly, initiative petitions for Police Accountability have stirred the excitement of progressives-see third to last paragraph.) 

However, since Fall 2017 the Surveillance Technology Use...Ordinance has been scheduled then postponed on no less than five (5) Berkeley City Council agendas (12/5/17, 1/23, 1/30, 3/13, and 3/27/18) finally being addressed on 3/13 and 3/27/18. This was after the submission, often on the very day of the meeting, of several revised versions of the original Santa Clara County Board's 2016 Surveillance Ordinance upon which Berkeley's was based. Berkeley's Surveillance Ordinance signed 3/29/18 by Mayor Jesse Arreguin is slated to become effective 4/29/18. 

Several of the twenty-seven (27) organizations who endorsed the Berkeley initial Surveillance Ordinance version, such as the National Lawyers Guild, Asian Law Caucus, ACLU, TURN, and Electronic Frontier Foundation have lawyers on their staffs. Were these endorsing organizations alerted to the changes that took place in the ensuing versions of the original Surveillance Ordinance which they endorsed? If not, they should compare the Surveillance Technology Ordinance adopted 3/27/18 with that presented to them for endorsement in the Fall of 2017. 

Councilmember Ben Bartlett reminded other City Councilmembers at a recent meeting that the whole purpose of a Surveillance Technology Ordinance is to protect community members' privacy and civil rights and civil liberties guaranteed by U.S. and California Constitutions. But it is in those very sections of the Ordinance referring to these rights, that major changes weakening the Ordinance were made, quite likely affecting its enforceability. For example: 

· Purposes (originally Findings) (emphases below added) 

o The City’s duty to protect the privacy and civil rights of its community members now reads; the City’s interest in protecting those rights. 

o “ Legally enforceable safeguards…must be in place to protect civil rights and civil liberties before any surveillance technology is acquired or deployed” has been changed to read “legally enforceable safeguards…are important in the protection of civil rights and civil liberties.” 

· Under Determination by City Council that Benefits Outweigh Costs and Concerns (emphases below added) 

o “that the proposal will appropriately safeguard civil liberties and civil rights…” now reads in the adopted ordinance “…that the proposal will appropriately safeguard civil liberties and civil rights to the maximum extent possible...”. 

· In the Definitions section (emphases below added) 

o Under “Surveillance Acquisition Report” (Formerly Impact Report) (e) Mitigation has been altered with respect to its effect on (d) Impact. In the initial Fall 2017 version Mitigation: reads “information regarding specific, affirmative technical and procedural measures…will be implemented to appropriately safeguard the public from any Impact identified in subsection (d);”. The Impact of concern in (d) is that “on civil liberties and civil rights including but not limited to potential disparate or adverse impacts on any communities or groups.” 

The adopted Surveillance Technology Ordinance weakens the definition of Mitigation by eliminating the words specific and affirmative, and substituting the word can for will. 

o Under the definition of “Surveillance Technology in the paragraph ‘“Surveillance Technology” does not include’ have been added at least six (6) technologies not listed in the original Surveillance Ordinance. Now included as not Surveillance technology are City-issued cell phones provided by the City Police Department to each police officer to be used in conjunction with Body-Worn Cameras which are considered Surveillance Technology. The cell phones were issued after Body-Worn Cameras were approved for use by both the Police Review Commission and the City Council. PRC members have raised questions regarding the purpose and function of these cell phones. 

o An entire new section of Technology, not to be considered as such, has been added to the adopted ordinance. It is named “Cybersecurity capabilities, technologies and systems used by the City of Berkeley’s Department of Information Technology”. This essentially removes an entire department’s involvement in surveillance from review by City Council. For instance: the Geographical Information System (GIS) originally referred to as the Homeland Security Data Server Project. The GIS is connected to Federal Intelligence Agencies, such as the National Imagery and Mapping Agency (NIMA), and is critical to providing comprehensive geospatial information to the federal, state, local and military organizations responsible for Homeland Security missions. (such as ICE?) 

The adopted final version of Berkeley’s Surveillance Ordinance, unlike the Santa Clara County ordinance, downgrades the importance of public input. The phrase “give significant weight to public input” has been eliminated from Berkeley’s Purposes section. 

Also in Berkeley’s final version referral to the “appropriate reviewing Commission” (emphasis added) has been removed from both the Temporary Acquisition and Use of Surveillance Equipment and the Oversight Following City Council Approval sections. The former section allows the City Manager to use Surveillance Technology in Exigent circumstances without City Council approval, but must provide written notice of such acquisition or use to the City Council (but again the words “and to an appropriate commission” have been removed). 

In contrast, the Santa Clara County Surveillance Technology…Ordinance adopted by their Board May 2016, in their Findings section, devotes a long paragraph to the California Constitution’s provision that all people have an inalienable right to privacy. In that paragraph they state “the Board finds it essential to have an informed public discussion before deploying surveillance technology…”. 

As mentioned earlier, the initiative petitions exhorting Police Accountability have stirred the excitement of progressives who want a more powerful Berkeley Community Police Review Board. Will progressives jump on the consensus bandwagon and override a thorough analysis of the petition’s content for its actual viability and effectiveness? 

The Veterans For Peace, East Bay Chapter and SuperBOLD wrote the City Council in 2017 stating that they were strongly in favor of a Surveillance Ordinance that truly protects the privacy, free speech and assembly rights of the Berkeley community. They indicated this would not be possible if only new technology was reviewed for possible acquisition; that all existing surveillance programs, which may or may not involve technology (e.g. Undercover Criminal Intelligence Officers for Infiltrating a Non-target Group) must all be reviewed by the Council to determine the advisability of their continuance depending on their effect on our privacy, our civil rights and civil liberties. 

To truly protect our privacy, free speech, assembly, civil rights and liberties we must demand our City Council detach itself from a national police network headed by ‘America’s top cop’ the arch-racist Attorney General Jeff Sessions. Berkeley must sever itself from a militarized surveillance state. To achieve this the City Council must vote against the renewal of two programs: the FBI run Northern California Regional Intelligence Program (NCRIC), which places Terrorism Liaison Officers, sworn to secrecy, in our local police departments, and the Department of Homeland Security program, Urban Areas Security Initiative, which funds Urban Shield’s urban warfare training and military equipment such as armored tanks; In Berkeley called a Specially Equipped Panel Van